CHAPTER 8. THE JUDICIAL BRANCH

[Parts A and B are extracted from portions of ROBERT M. BASTRESS, JR., THE WEST VIRGINIASTATE CONSTITUTION 239-45 (2nd ed., Oxford University Press, 2016).]

A. Introduction

Read Article VIII, § 1.

Article VIII establishes and defines the judicial branch of the State's government. The Articlehas had four major editions. Each has commissioned a Supreme Court of Appeals as the court oflast resort and a system of circuit courts to function as the trial courts of general jurisdiction,although the number of justices on the high court and the number of circuits have both increasedsince the original constitution. The principal changes in Article VIII, however, have related to theinferior courts of limited jurisdiction and to the administration of the judicial system.

The 1863 Constitution, which relied on the township system of local government, provided thateach township should elect a justice (or two) to handle small civil claims and criminalmisdemeanors. The 1872 Convention, however, scrapped the township system and reverted toVirginia's reliance on county courts, which Article VIII accorded legislative, executive, and judicialpowers. The latter were quite extensive, including even concurrent jurisdiction with the circuitcourts (and to some extent with the Supreme Court) over significant legal actions. Article VIII thenauthorized justices of the peace to handle small claims and other less substantial matters. Thissystem of overlapping jurisdictions and conflicting authority lasted only until 1879, when the firstJudicial Amendment took away most of the county courts' judicial functions and left the justice ofthe peace system intact. With only minor changes, Article VIII remained in its 1879 version until1974, when the Judicial Reorganization Amendment was passed and the present Article VIII wasenacted. Under that Amendment, county courts became county commissions and the sectionsgoverning them were moved to Article IX (§§ 9-11). Justices of the peace were replaced bymagistrates elected county-wide. (See Article VIII, §§ 10 and 15). Among other changes, theAmendment greatly improved the administration of courts in the State by establishing a unitarycourt system under the aegis of the Supreme Court of Appeals. An amendment in 2000 added theFamily Courts to the judicial system.

Accordingly, Section 1 now vests the State's judicial power in the Supreme, circuit, family, andmagistrate courts. It also allows the Legislature to establish intermediate appellate courts (i.e.,between the circuit and Supreme courts) – a power that has thus far gone unused.

B. The Supreme Court

Read Article VIII, §§ 2-4, 8.

Section 2 of Article VIII sets up the Supreme Court of Appeals and its basic operating procedure. A 1903 amendment to the first paragraph raised the number of justices from four to five, while aquorum on the Court remained at three justices.

The second paragraph retained the provision that Supreme Court justices are to be selected bypopular election, as has been the case throughout the State's history. The 1974 Amendment addedthat the Legislature may provide that their election be on a nonpartisan basis, an invitation that wasdeclined for years but finally accepted in 2015 legislation. The paragraph also continued to set thejustices' terms of office at twelve years, which provides for some measure of judicial independencefrom political pressures. By virtue of § 1's antecedents, the justices serve staggered terms.

Section 2's third paragraph requires the justices to create rules for the selection of a chief justiceand for his or her replacement during a period of disability. Presently, the justices rotate the chief

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justiceship among the five justices.The concluding paragraph authorizes the chief justice to appoint a judge from a circuit court or

from an intermediate court (if one is created) to serve in place of a justice who is temporarily unableto serve.

Article VIII, § 3 establishes the jurisdictional and administrative powers of the Supreme Courtof Appeals. The jurisdictional grants largely follow the provisions in earlier editions of Article VIII,but the specific allocations of authority regarding the operation and management of the judicialsystem were new and important additions made by the 1974 Amendment.

The first two paragraphs set forth the Court's subject matter jurisdiction. The original jurisdictionconferred in the first paragraph permits the Court to hear any of the enumerated cases from thebeginning, without any prior judicial determination. The specified proceedings--"habeas corpus,mandamus, prohibition and certiorari"--are the extraordinary writs derived from the common law. Habeas corpus is an action that seeks release from an allegedly unlawful detention; mandamus isavailable to order a public official to perform a nondiscretionary duty; prohibition lies to stop aninferior court from proceeding in a case in which it lacks jurisdiction or is otherwise abusing itspower; and certiorari provides a mechanism for reviewing judicial and quasi-judicial decisions. TheSupreme Court shares concurrent power with the circuit courts to entertain petitions for theextraordinary writs. Article III, § 6. The writs have been extremely important in West Virginiapractice and history.

The enumeration of the Court's appellate jurisdiction in the second paragraph allows an appealfrom virtually every civil judgment that would be rendered by a circuit court. The jurisdictionalamount ($300) is so low as to apply to most any case worth litigating through a circuit courtjudgment, let alone appealing, although § 3 does authorize the Legislature to set a higher amount.(It hasn't. See W.Va. Code 51-1-3 for the statutory provisions relating to Supreme Courtjurisdiction.) Moreover, the other, additional civil cases that can be appealed, regardless of theamount in controversy, result in an expansive appellate jurisdiction. Those cases include actionsinvolving matters in equity (i.e., those in which the plaintiff sought injunctive or other relief thathistorically had been the province of the courts of equity), concerning title to land, seeking anextraordinary writ, and raising issues of personal freedom or the constitutionality of a law. Thelatter provision establishes that the Court has the authority to review the constitutionality of alegislative or executive action and declare it void. This power of "judicial review" has been asubject of some academic debate at the federal level but has been expressly granted in each of theoriginal and amended versions of the State's judicial articles.

The Supreme Court's jurisdiction in criminal appeals attaches to any appeal from a circuit courtconviction for a felony or misdemeanor. With the exception for proceedings involving publicrevenue, the right to appeal in criminal cases rests solely with the defendant, since only"convictions" can be appealed. State v. Bailey (1970); see also Article III, § 5 (Double JeopardyClause). In all probability, the exception allowing government appeals in public revenue casesviolates the Double Jeopardy Clause of the Sixth Amendment to the United States Constitution. Finally, § 3 authorizes the Legislature to further expand the Court's jurisdiction in either civil orcriminal cases.

The third and fourth paragraphs, added by the Judicial Reorganization Amendment of 1974,establish the unitary judicial system in West Virginia. They are considered in the two cases (Quelchand Louk) immediately following this commentary.

Section 4 of Article VIII directs the minimum procedures for the Supreme Court's handling ofappeals. The section combines Article VIII, §§ 4-6 of the 1872 Constitution and its 1879Amendment. The 1863 Constitution had no analogue to § 4's first two paragraphs, but did includea provision in Article VI, § 9 similar to § 4's third paragraph. The original, however, did not imposethe syllabus points requirement.

The writs of error, supersedeas, and appeal were the common law methods for obtaining review

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of lower court decisions. Section 4's first paragraph provides that litigants seeking such review mustpetition the Court and describe the error allegedly committed by the lower court. Under longstanding past practices, a party appealing to the Supreme Court filed a petition for appeal identifyingthe perceived errors in the lower tribunal’s decision and explaining why the Court should hear theappeal. After time for a response, the Court denied the petition without further proceedings, grantedthe petition and set a schedule for full briefing and oral argument, or entered some other appropriateorder. Under recent amendments to the Rules of Appellate Procedure, the process is somewhatdifferent. See W. Va. Rules of Appellate Procedure, Rules 5-22. Now, the appealing party mustfile a notice of appeal and then subsequently perfect the appeal by filing its brief and designatedportions of the record from the circuit court or agency. The opposing party or parties respond, andthere is an opportunity for a reply brief. The Court then decides (1) to affirm or reverse without oralargument and issues a memorandum decision explaining its reasoning and why a full opinion by theCourt is not needed; or (2) sets the case for oral argument, which can be an abbreviated or fullargument. Following argument, the Court can either issue a memorandum decision summarilydeciding the case, a full opinion, or some appropriate order. The Court’s criteria for hearing fullargument and issuing an opinion of the Court include error in the lower tribunal decision, theimportance of the case, the novelty of the issues presented, the presence of any constitutional issues,and the existence of conflicting decisions in the circuit courts. Those criteria implement § 4'sdirective that the Court grant appeals only after it has examined the record and “is satisfied that thereprobably is error in the record, or that it presents a point proper for the consideration of the court.”

The second paragraph establishes that no decision shall be a binding precedent on other casesunless the decision commands a majority of the justices. The third paragraph imposes certainresponsibilities on the Court when deciding cases. It is required to consider and decide all points"fairly arising upon the record" [though not necessarily every point created by ingenuity of counsel,Lubeck Meat Packing, Inc. v. Motorists Mutual Ins. Co. (1988)], to state its reasons in writing, andto prepare a syllabus that summarizes the Court's holdings.

STATE ex rel. QUELCH v. DAUGHERTY, 172 W. Va. 422, 306 S.E.2d 233 (1983).

HARSHBARGER, Justice.

Petitioners are four law students in good standing at West Virginia University School of Law.They have invoked our original jurisdiction to mandamus the Board of Law Examiners to admitthem to practice law without taking the Bar examination. In 1981 our state legislature amended W.Va. Code, 30-2-1, to require all West Virginia University law school graduates after July 1, 1983,to take the examination. Until that time, West Virginia University Law School graduates had been"privileged", not required to successfully complete the examination in order to qualify for admissionto practice. The Board of Law Examiners has taken no position on this writ.

The diploma privilege is found in both former Code, 30-2-1, and Rule 1.020 of the Code of Rulesfor Admission to the Practice of Law[.] . . . [Section 30-2-1 has been amended to limit the diplomaprivilege to College of Law graduates whose graduation date preceded July 1, 1983.]

Petitioners contend that the legislature does not have authority to regulate admission to practice.That power is ours alone, certainly since the 1974 Judicial Reorganization Amendment to our StateConstitution, W. Va. Const. art. VIII, §§ 1 and 3.

We need not again trace the historical development of judicial control over the practice of law.See Lane v. W. Va. State Board of Law Examiners, 170 W.Va. 583, 295 S.E.2d 670 (1982); Stateex rel. Askin v. Dostert, 170 W.Va. 562, 295 S.E.2d 271 (1982); Carey v. Dostert, W. Va. 294S.E.2d 137 (1982); State ex rel. Frieson v. Isner, W.Va., 285 S.E.2d 641 (1981); W. Va. State Barv. Earley, 144 W.Va. 504, 109 S.E.2d 420 (1959). We summarized its evolution in State ex rel.

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Askin v. Dostert, supra 295 S.E.2d, at 275:It was decided at an early point in West Virginia jurisprudence that the Legislature possessed

the authority to govern the admission and practice of attorneys in West Virginia courts, but thatthe judiciary retained its common law supervisory powers "to exclude or admit, on applicationfor admission, or to dismiss, after admission, for misconduct or unfitness of character . . . ." Exparte Hunter, 2 W.Va. 122, 182 (1867). However, as a result of legislative and constitutionalmodifications, the dichotomy of authority to regulate the practice of law, once shared by thelegislative and judicial departments, has not survived in West Virginia. Today, the exclusiveauthority to define, regulate and control the practice of law in West Virginia is vested in theSupreme Court of Appeals. State ex rel. Frieson v. Isner, 168 W.Va. 758, 285 S.E.2d 641 (1981).In Carey v. Dostert, . . ., we wrote:

The power to supervise, regulate and control the practice of law includes the power to admitand disbar attorneys. . . .Any legislatively-enacted provision regarding bar admissions that conflicts with or is repugnant

to a Supreme Court rule must fall. Lane v. W. Va. State Board of Law Examiners, supra 295 S.E.2d,at 673; State ex rel. Frieson v. Isner, supra; State ex rel. Thorn v. Luff, 154 W.Va. 350, 175 S.E.2d472 (1970). The Judicial Branch may honor legislative enactments in aid of judicial power, but isclearly not bound to do so. State ex rel. Frieson v. Isner, supra 285 S.E.2d, at 654. ... Somejurisdictions permit the legislature, in exercise of its police powers, to enact reasonable regulationsfor admission to the Bar. . . . Legislative enactments which are not compatible with those prescribedby the judiciary or with its goals are unconstitutional violations of the separation of powers.

The case reporters are replete with examples of state supreme Courts invalidating legislation thatencroaches upon their constitutionally granted powers. . . . The Kentucky Supreme Court recognizedthat any power that had resided in the legislature regarding bar admissions was superseded byKentucky's 1975 Judicial Amendment:

There can be no doubt that this constitutional amendment completely removed the subjectfrom any legislative authority and rendered obsolete and ineffective the statutes pertaining to it.Strangely, nevertheless, at its 1976 regular session the General Assembly reenacted provisionsauthorizing the Supreme Court to appoint a board of bar examiners and to organize and governthe bar, and again requiring that admission fees be remitted to the state treasury. . . . Thesestatutory provisions are void because they purport to erect powers and limitations that no longerfall within the legislative province. Ex parte Auditor of Public Accounts, Ky., 609 S.W.2d 682,684 (1980).There is no doubt that amended W. Va. Code, 30-2-1 is repugnant to and conflicts with our Rule

1.020. The former removed the diploma privilege that the latter grants. W. Va. Code, 30-2-1, asamended, is an unconstitutional usurpation of this Court's exclusive authority to regulate admissionto the practice of law in this State. Petitioners and other West Virginia University Law Schoolgraduates shall be admitted to practice law without taking the Bar examination if they have met theother qualifications of Rule 1.020. . . .

NEELY, Justice, concurring.

I concur in the result in this case but for slightly different reasons than those stated by themajority. The 1981 amendment to W. Va. Code, 30-2-1 [1972] did not have the effect of requiringa bar examination of graduates of West Virginia University's College of Law. The amendmentmerely eliminated the time-honored, statutory diploma privilege that was enacted by the Legislaturewhen it was thought that the Legislature could control certain aspects of the practice of law.

I do not agree with the majority that all aspects of the practice of law in West Virginia are withinthe exclusive control of the Supreme Court of Appeals. In this regard I fail to find the recent casesof this Court particularly persuasive. . . . In my opinion, a legislative act requiring a bar examination

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would be within the prerogative of the Legislature under W. Va. Const., art. VIII, §§ 1 and 3.However, the effect of the 1981 legislative amendment to Code, 30-2-1 [1972] that is now inquestion was not to require a bar examination of graduates of the West Virginia University Collegeof Law, but rather to eliminate the legislatively mandated diploma privilege.

Our Rule 1.020 allows graduates of the College of Law to be admitted to practice withoutexamination. Since the Legislature has not attempted to invalidate our Rule 1.020, I see no reasonthat Rule 1.020 should not remain in force and effect. Had the Legislature intended to require a barexamination they would have said so. In fact, the Legislature merely placed this question within theCourt's discretion.

I despise bureaucratic requirements that demand that people perform vain acts. In a state likeWest Virginia where we have a competent law school specializing in West Virginia law, a barexamination becomes nothing but a nuisance. Consequently, I am pleased to leave the diplomaprivilege in place, but I believe that it is within the legislative prerogative to require by a specificstatute that all candidates for admission to the bar take a bar examination.

Finally, my understanding of this matter is instructed by two great principles: First, one shouldalways attempt to avoid the inveterate human compulsion to make the other man's life miserable forno ostensible reason; and second, if it ain't broke, don't fix it.

MILLER, Justice, dissenting.

It seems to me that the majority in its eagerness to demonstrate that this Court has the inherentpower to regulate the practice of law has ignored the familiar postulate that a legislative act relatingto the practice of law is not necessarily invalid. We recognized this principle in one of our earliestcases relating to the qualifications for the practice of law:

"But notwithstanding the jurisdiction of the courts over the subject it has been generallyconceded that the legislature may in the exercise of its police power, prescribe reasonable rulesand regulations for admissions to the bar, which will be followed by the courts. But thelegislature may not impose unreasonable rules or deprive the courts of their inherent power toprescribe other rules and conditions of admission to practice." In re Application for License toPractice Law, 67 W. Va. 213, 218, 67 S.E. 597, 599 (1910).Other states have followed this principle. The primary test used is whether the statute is

compatible with the judiciary's goal in regard to the practice of law. One of the best expressions ofthis rule is found in Sadler v. Oregon State Bar, 275 Or. 279, 286, 550 P.2d 1218, 1222, 83 A.L.R.3d762, 768 (1976):

"'The power to admit the applicants to practice law is judicial and not legislative, and is, ofcourse, vested in the courts only. Originally the courts alone determined the qualifications ofcandidates for admission, but to avoid friction between the departments of government, thecourts of this and other states have generously acquiesced in all reasonable provisions relatingto qualifications enacted by the legislatures.’” . . . [Sadler] concluded that the overlap of the judicial and legislative powers arises from the

legislature's police power to protect the public welfare by promoting the efficient and impartialadministration of justice. . . .

Paradoxically, the majority does not mention, although the petitioners candidly admit, that thediploma privilege for graduates of the West Virginia University Law School was first initiated bythe Legislature. 1897 W. Va. Acts 50. See In re Application for License to Practice Law, supra. Itappears that this Court had no express rule relating to the diploma privilege until 1973. When wedid adopt a rule it followed the statute and extended the diploma privilege to graduates of the WestVirginia University Law School. Thus, for a period of eighty years, this Court was content to followa legislative enactment relating to the admission to the practice of law. It is only when theLegislature took steps to withdraw the diploma privilege in 1981, which it had initially created, that

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this Court roused from its long slumber and declared there had been a violation of the separation ofpowers doctrine. One might understand this sudden awakening on the part of the majority, if theyhad given some reasons why the diploma privilege serves to promote the practice of law.

Only one other state, Wisconsin, currently has the diploma privilege. . . . With the increasingdevelopment of federal regulatory laws, uniform acts, and federal constitutional decisions whichhave an impact on all states, it is sheer myopia to suggest that there is some substantial body of WestVirginia law that is different from the general law. Surely, it is not for the uniqueness of our law thatwe retain the privilege. Furthermore, the perpetuation of the diploma privilege carries with it somelong term adverse consequences as several states refuse attorney admission or reciprocity unless theoriginal admission has been by way of a bar examination. . . .

The Montana Supreme Court considered the question of retaining the diploma privilege in In theMatter of Proposed Amendments Concerning the Bar Examination and Admission to the Practiceof Law, 187 Mont. 159, 609 P.2d 263 (Mont. 1980), and decided against its retention after athorough analysis of the issue. I consider many of its observations extremely pertinent:

First: "There is no substantial or acceptable argument for retention of the diploma privilege. Itsprimary purpose has long ceased to exist--i.e. incentive to attract students to a small law schoolas it struggles to gain recognition in the legal community." . . . Second: "There is, in fact, a double standard created by the diploma privilege and the Barexamination [for non-state law school graduates] as it relates to admission to the Bar." . . . Third: "The fact that the law student knows he must face the Bar examination after graduationand before admission to practice is a healthy, educational stimulant . . . . It is also a stimulant tothe law school faculty to maintain high standards of legal education because the faculty knowsthat their students will be examined by state authorities." . . . Fourth: "The Bar examination serves an additional function in that [it] has one essentialdifference from the law school examination -- it is a comprehensive examination covering theentire field of several years of law study." . . . Fifth: "The American Bar Association has taken a positive, clear and very hard stand against thediploma privilege in connection with the standards of legal education." . . .Finally, and perhaps the most telling point is that by maintaining the diploma privilege: "Wehave effectively turned over the selection of who becomes a member of the . . . . Bar to . . . . [thefaculty of the] School of Law. This is contrary to all present practice and has no recognizableredeeming value." . . . For the foregoing reasons, I respectfully dissent.

LOUK v. CORMIER,218 W. Va. 81, 622 S.E.2d 788 (2005).

Davis, Justice.

Rita Mae Louk, appellant/plaintiff below (hereinafter referred to as "Ms. Louk"), appeals froman order of the Circuit Court of Randolph County denying her motion for a new trial. A juryreturned a non-unanimous verdict against Ms. Louk in her medical malpractice action against Dr.Serge Cormier[.] Here, Ms. Louk contends that the circuit court erred by ruling that the non-unanimous verdict provision of W. Va. Code § 55-7B-6d (2001) (Supp. 2004) was constitutional.. . .

I. FACTUAL AND PROCEDURAL HISTORY

The sparse record in this case indicates that on June 13, 2000, Dr. Cormier performed ahysterectomy and salpingo-oophorectomy on Ms. Louk. The surgery occurred at Davis MemorialHospital. Several days after Ms. Louk was released from the hospital, she became gravely ill.

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Consequently, on June 22, 2000, Ms. Louk returned to the hospital complaining of a fever,abdominal stress, constipation, bloating and a tender abdomen. On the day that Ms. Louk returnedto the hospital, exploratory surgery was performed. The exploratory surgery revealed that Ms. Loukhad suffered a perforation of her cecum.

On May 20, 2002, Ms. Louk filed a medical malpractice action against Dr. Cormier. The centralallegation in the complaint was that Dr. Cormier perforated Ms. Louk's cecum when he performedthe hysterectomy and salpingo-oophorectomy. Dr. Cormier defended the action on a theory that thececum spontaneously ruptured.

The case proceeded to trial on December 2, 2003, before a twelve person jury. After both partiespresented their case-in-chief, the trial court gave its jury charge. Among the instructions given wasan instruction that informed the jury that it was not necessary to reach a unanimous verdict. The juryreturned a verdict in which ten jurors found in favor of Dr. Cormier. Two jurors found in favor ofMs. Louk.

Thereafter, Ms. Louk filed a post-trial motion seeking a new trial arguing that the non-unanimousverdict instruction authorized by W. Va. Code § 55-7B-6d was unconstitutional. [The circuit courtdenied the motion.] . . .

III. DISCUSSION

. . . B. Separation of Powers Clause and the Rule-Making Clause

Ms. Louk contends that enactment of the non-unanimous verdict provision of W. Va. Code § 55-7B-6d violates the Separation of Powers Clause contained in Article V, § 1 of the West VirginiaConstitution because the Rule-Making Clause of Article VIII, § 3 grants this Court the authority topromulgate rules concerning non-unanimous jury verdicts. . . .

The Rule-Making Clause of Article VIII, § 3 provides, in relevant part, that the Supreme "Courtshall have power to promulgate rules for all cases and proceedings, civil and criminal, for all of thecourts of the State relating to writs, warrants, process practice and procedure, which shall have theforce and effect of law." W. Va. Const. art. VIII, § 3. See also Syl. pt. 1, Bennett v. Warner, 179 W.Va. 742, 372 S.E.2d 920 (1988) ("Under article eight, section three of our Constitution, the SupremeCourt of Appeals shall have the power to promulgate rules for all of the courts of the State relatedto process, practice, and procedure, which shall have the force and effect of law."). As a result ofthe authority granted to this Court by the Rule-Making Clause, "'a statute governing proceduralmatters in [civil or] criminal cases which conflicts with a rule promulgated by the Supreme Courtwould be a legislative invasion of the court's rule-making powers.'" State v. Arbaugh, 215 W. Va.132, 138, 595 S.E.2d 289, 295 (2004) (Davis, J., dissenting)[.] See also Syl. pt. 5, State v. Wallace,205 W. Va. 155, 517 S.E.2d 20 (1999) ("The West Virginia Rules of Criminal Procedure are theparamount authority controlling criminal proceedings before the circuit courts of this jurisdiction;any statutory or common-law procedural rule that conflicts with these Rules is presumptivelywithout force or effect."); Syl. pt. 7, in part, State v. Derr, 192 W. Va. 165, 451 S.E.2d 731 (1994)("The West Virginia Rules of Evidence remain the paramount authority in determining theadmissibility of evidence in circuit courts."). A review of some of the prior decisions of this Courtindicate that we have historically invalidated statutes that conflicted with rules promulgated by thisCourt.

The case of Laxton v. National Grange Mutual Insurance Company, 150 W. Va. 598, 148 S.E.2d725 (1966), overruled on other grounds by Smith v. Municipal Mut. Ins. Co., 169 W. Va. 296, 289S.E.2d 669 (1982), is one of the earliest decisions to address the issue of a statute that was in conflictwith a rule promulgated by this Court. In Laxton, the plaintiff's automobile was damaged in a wreck.The plaintiff filed an action against his insurer to recover the cost to repair the vehicle. The insurerdefended the action on the theory that the policy had been cancelled before the wreck occurred. Thejury returned a verdict in favor of the plaintiff. The insurer appealed, and the plaintiff filed a cross-

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assignment of error. The relevant issue in the case involved the plaintiff’s cross-assignment of error.On appeal, the plaintiff argued that the insurer had waived its defense of alleged cancellation by

failing to plead the defense in conformity with W. Va. Code § 56-4-21. That statute required that,in any action on an insurance policy, certain defenses must be asserted affirmatively by a statementin writing and under oath. The Court in Laxton acknowledged that prior to the adoption of the WestVirginia Rules of Civil Procedure, the requirements of W. Va. Code § 56-4-21 had been mandatory.However, the opinion went on to invalidate the statute as a result of the Rules of Civil Procedure:

We believe that the procedural provisions of this statute have been superseded by the WestVirginia Rules of Civil Procedure which became effective July 1, 1960. The . . . cases cited inbehalf of the plaintiff were decided before that date. R.C.P. 1 is, in part, as follows: "These rulesgovern the procedure in all trial courts of record in all actions, suits, or other judicial proceedingsof a civil nature whether cognizable as cases at law or in equity. . . ." R.C.P. 8 (c)) deals withaffirmative defenses, but does not provide that such defenses must be raised by a pleading underoath. R.C.P. 11 provides, that except where otherwise provided by the Rules, pleadings need notbe verified or accompanied by affidavit. The Rules embrace actions such as that involved in thiscase. The answer to the complaint affirmatively pleaded the alleged cancellation. The answer wasnot required by the Rules to be under oath. The cross-assignment of error, therefore, is not welltaken.

Laxton, 150 W. Va. at 601, 148 S.E.2d at 727. The leading case addressing the issue of a legislative statute that conflicted with a rule

promulgated by this Court is Mayhorn v. Logan Medical Foundation, 193 W. Va. 42, 454 S.E.2d87 (1994). Mayhorn was a medical malpractice action against an emergency room physician andhospital. During the trial, the circuit court granted the defendants' motion for a directed verdictasserting that the plaintiff's expert relied on a fact not in evidence when rendering his opinion. Theplaintiff filed an appeal. The defendants filed a cross-assignment of error. The relevant issue in thecase involved the defendants' cross-assignment of error.

In the defendants' cross-assignment of error, they alleged that the plaintiff's expert should nothave been allowed to testify because he did not qualify as an expert under W. Va. Code § 55-7B-7(1986) (Repl. Vol. 2000). This statute provided, in relevant part, that "expert testimony may onlybe admitted in evidence if the foundation, therefor, is first laid establishing that: . . . (e) such expertis engaged or qualified in the same or substantially similar medical field as the defendant healthcare provider."10 W. Va. Code § 55-7B-7 (emphasis added). The plaintiff argued that the statute wasinvalid because it was in conflict with Rule 702 of the West Virginia Rules of Evidence. Rule 702imposed the following requirements for a person to qualify as an expert:

If scientific, technical, or other specialized knowledge will assist the trier of fact tounderstand the evidence or to determine a fact in issue, a witness qualified as an expert byknowledge, skill, experience, training, or education may testify thereto in the form of an opinionor otherwise.

(Emphasis added). The opinion in Mayhorn acknowledged that the Court had previously examined the validity of

W. Va. Code § 55-7B-7 in Gilman v. Choi, 185 W. Va. 177, 406 S.E.2d 200 (1990). However, theissue in Gilman had been whether or not the Legislature could enact a statute which addressed thecompetency of an expert. Gilman found that the Legislature could craft competency requirementsfor experts because Rule 601 of the West Virginia Rules of Evidence specifically stated that "everyperson is competent to be a witness except as otherwise provided for by statute or these rules."(Emphasis added). In dicta, Gilman suggested that Rule 601 could be used by the Legislature to

10The statute was amended in 2003, and the italicized language was removed. See W. Va. Code § 55-7B-7 (2003) (Supp.2004).

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impose qualifications on experts. The Mayhorn opinion rejected Gilman's broad application of Rule601 as follows:

There is a difference between the competency of a witness, which is governed by W. Va. R.Evid. 601, and the qualifications of an expert, which is governed by W. Va. R. Evid. 702.Furthermore, W. Va. R. Evid. 601 should not be used to allow the legislature to outline when anexpert is qualified. Instead, the applicable provision is W. Va. R. Evid. 702. . . .

W. Va. R. Evid. 702 does not provide that the legislature may outline when a witness shouldbe found to be qualified as an expert. This Court has complete authority to determine an expert'squalifications pursuant to its constitutional rule-making authority. . . .

Accordingly, we hold that Rule 702 of the West Virginia Rules of Evidence is the paramountauthority for determining whether or not an expert is qualified to give an opinion. Therefore, tothe extent that Gilman v. Choi, 185 W. Va. 177, 406 S.E.2d 200 (1990) indicates that thelegislature may by statute determine when an expert is qualified to state an opinion, it isoverruled.

[Mayhorn.] See also West Virginia Div. of Highways v. Butler, 205 W. Va. 146, 516 S.E.2d 769(1999) (holding that the requirement of W. Va. Code § 37-14-3(a) that an expert real estate appraiserhad to be licensed and, certified was invalid and that Rule 702 controlled the qualifications of suchan expert); Teter v. Old Colony Co., 190 W. Va. 711, 441 S.E.2d 728 (1994) (same).

Recently, in Games-Neely ex rel. West Virginia State Police v. Real Property, 211 W. Va. 236,565 S.E.2d 358 (2002), we were again asked to determine the validity of a legislative statute thatconflicted with a rule of this Court. The decision in Games-Neely involved the State's seizure of thehome of an elderly woman. The home had been used by others to engage in drug trafficking. TheState filed a petition to seize the home under the West Virginia Contraband Forfeiture Act (the"Forfeiture Act"), W. Va. Code §§ 60A-7-701 et seq The home owner failed to file an answer withinthe timeframe set by the Forfeiture Act. Consequently, a default judgment was rendered. The homeowner subsequently filed a motion to set aside the default judgment under Rule 60(b) of the WestVirginia Rules of Civil Procedure. The trial court denied relief. In the appeal, one of the issues theCourt addressed was whether or not a provision in the Forfeiture Act precluded the circuit courtfrom entertaining a Rule 60(b) motion. The provision in question, W. Va. Code § 60A-7-705(d)[,]provided as follows:

If no answer or claim is filed within thirty days of the date of service of the petition pursuantto subsection (b) of this section, or within thirty days of the first publication pursuant tosubsection (b) of this section, the court shall enter an order forfeiting the seized property to thestate.

The Court in Games-Neely properly concluded that W. Va. Code § 60A-7-705(d) could not preventa trial court from hearing a Rule 60(b) motion:

Despite the mandatory language of Section 705(d), the Appellant maintains that the circuitcourt still has discretion to set aside the default judgment pursuant to Rule 60(b) of the WestVirginia Rules of Civil Procedure. . . . . . . .

. . . There is no question that rules promulgated under authority of the state constitution . . .prevail whenever there is a conflict, real or perceived, between such rules and legislativeprovisions involving court procedures. . . . . . . .

Upon consideration of these established principles concerning conflicts between judicially-enacted rules of procedure and legislative acts that contain procedural directives, we concludethat Rule 60(b) has the force and effect of law; applies to forfeiture proceedings under theForfeiture Act; and supersedes West Virginia Code § 60A-7-705(d) to the extent that Section705(d) can be read to deprive a circuit court of its grant of discretion to review a defaultjudgment order. Accordingly, we hold that a circuit court has discretion under Rule 60(b) of the

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West Virginia Rules of Civil Procedure to set aside a judgment by default entered pursuant toWest Virginia Code § 60A-7-705(d) of the Forfeiture Act for failure to file an answer or claimwithin thirty days of the date of service of a petition of forfeiture or within thirty days [sic] itsfirst publication.

[Games-Neely.]The decisions in Laxton, Mayhorn and Games-Neely are illustrative of this Court's longstanding

position that "the legislative branch of government cannot abridge the rule-making power of thisCourt." In re Mann, 151 W. Va. 644, 651, 154 S.E.2d 860, 864 (1967), overruled on other groundsby Committee on Legal Ethics of West Virginia State Bar v. Boettner, 183 W. Va. 136, 394 S.E.2d735 (1990). See also Syl. pt. 2, Williams v. Cummings, 191 W. Va. 370, 445 S.E.2d 757 (1994)("West Virginia Code § 56-1-1(a)(7) provides that venue may be obtained in an adjoining county'if a judge of a circuit be interested in a case which, but for such interest, would be proper for thejurisdiction of his court. . . .' This statute refers to a situation under which a judge might bedisqualified, and therefore it is in conflict with and superseded by Trial Court Rule XVII, whichaddresses the disqualification and temporary assignment of judges."); State v. Davis, 178 W. Va. 87,90, 357 S.E.2d 769, 772 (1987) (holding that W. Va. R. Crim. P. 7(c)(1) supersedes the provisionsof W. Va. Code § 62-9-1 (1931) to the extent that the statute requires the indorsement of the grandjury foreman and attestation of the prosecutor on the reverse side of the indictment), overruled onother grounds by State ex rel. R.L. v. Bedell, 192 W. Va. 435, 452 S.E.2d 893 (1994); Hechler v.Casey, 175 W. Va. 434, 449 n.14, 333 S.E.2d 799, 815 n.14 (1985) ("W. Va. Code, 53-1-8 [1933],applicable to both mandamus and prohibition proceedings, authorizes an award of either of thesetypes of writs with or without costs as the court or judge may determine. W. Va .R. App. P. 23(b),however, . . . precludes an award of costs to the State in this Court. This Court's procedural rule, tothe extent it conflicts with the procedural statute, supersedes the statute."); Syl., State ex rel. Quelchv. Daugherty, 172 W. Va. 422, 306 S.E.2d 233 (1983) ("The constitutional separation of powers,W. Va. Const. art. V, § 1, prohibits the legislature from regulating admission to practice anddiscipline of lawyers in contravention of rules of this Court."); Syl. pt. 2, Stern Bros., Inc. v.McClure, 160 W. Va. 567, 236 S.E.2d 222 (1977) ("The administrative rule promulgated by theSupreme Court of Appeals of West Virginia, setting out a procedure for the temporary assignmentof a circuit judge in the event of a disqualification of a particular circuit judge, operates to supersedethe existing statutory provisions found in W. Va. Code, 51-2-9 and -10 and W. Va. Code, 56-9-2,insofar as such provisions relate to the selection of special judges and to the assignment of a caseto another circuit judge when a particular circuit judge is disqualified."); Montgomery v.Montgomery, 147 W. Va. 449, 128 S.E.2d 480 (1962) (holding that the bills of exceptionrequirement for an appeal under W. Va. Code § 56-6-35 was abolished by Rule 80).

C. Conflict between W. Va. Code § 55-7B-6d and W. Va. R. Civ. P. Rule 48 Ms. Louk next contends that the non-unanimous verdict provision contained in W. Va. Code §

55-7B-6d is a procedural rule that is in conflict with Rule 48 of the West Virginia Rules of CivilProcedure, and is therefore invalid.13

13It has been pointed out that "'in order to ascertain whether there is an infringement on this Court's rulemaking authority,we must first determine whether the statute is substantive or procedural. If we find that the statute is "substantive andthat it operates in an area of legitimate legislative concern," then we are precluded from finding it unconstitutional.'"State v. Arbaugh, 215 W. Va. 132, 138, 595 S.E.2d 289, 295 (2004) (Davis, J., dissenting) (quoting Caple v. Tuttle'sDesign-Build, Inc., 753 So. 2d 49, 53 (Fla. 2000)). Furthermore, it has been recognized that

substantive law prescribes norms for societal conduct and punishments for violations thereof. It thus creates, defines,and regulates primary rights. In contrast, practice and procedure pertain to the essentially mechanical operations ofthe courts by which substantive law, rights, and remedies are effectuated. Arbaugh, 215 W. Va. at 139, 595 S.E.2d at 296 (Davis, J., dissenting) (quoting State v. Templeton, 148 Wn. 2d 193,

213, 59 P.3d 632, 642 (2002)). In the instant case, we have no difficulty in finding the provisions of W. Va. Code § 55-

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The Judicial Branch

We begin our analysis by pointing out that in 2001 the Legislature amended the ["MPLA"] byadding W. Va. Code § 55-7B-6d. . . . This Court is quite sensitive to the need for reform in medicalmalpractice litigation. Furthermore, we wholeheartedly applaud the efforts of the Legislature inattempting to find a balance between the rights of injured persons and the desire to maintain a stablehealth care system in our State. However, "it is the constitutional obligation of the judiciary toprotect its own proper constitutional authority by upholding the independence of the judiciary." Syl.pt. 4, State ex rel. Lambert v. Stephens, 200 W. Va. 802, 490 S.E.2d 891 (1997). "The efficientadministration of the judicial system is essential to our duty to implement justice in West Virginia;and, therefore, we must be wary of any legislation that undercuts the power of the judiciary to meetits constitutional obligations." State ex rel. Frazier v. Meadows, 193 W. Va. 20, 25, 454 S.E.2d 65,70 (1994). "The role of this Court is vital to the preservation of the constitutional separation ofpowers of government where that separation, delicate under normal conditions, is jeopardized bythe usurpatory actions of the executive or legislative branches of government." State ex rel. Steelev. Kopp, 172 W. Va. 329, 337, 305 S.E.2d 285, 293 (1983). Without question, "this Court has settledon a policy of strong adherence to the several constitutional provisions relating to the separation ofpowers, as conferred on the three departments of the State government, and particularly as to thejurisdiction of courts, and the powers they may assume or decline to exercise." Sims v. Fisher, 125W. Va. 512, 524, 25 S.E.2d 216, 222 (1943). Therefore, it is our constitutional duty to make certainthat W. Va. Code § 55-7B-6d has been enacted in a manner that does not encroach upon theconstitutional powers of this Court. See Syl. pt. 3, State ex rel. Weirton Med. Ctr. v. Mazzone, 214W. Va. 146, 587 S.E.2d 122 (2002) ("The provisions of the Medical Professional Liability Act, W.Va. Code §§ 55-7B-1 to -11 (1986), govern actions falling within its parameters, subject to thisCourt's power to promulgate rules for all cases and proceedings, including rules of practice andprocedure, pursuant to Article VIII, Section 3 of the West Virginia Constitution.").

The relevant language in W. Va. Code § 55-7B-6d states that, in medical malpractice litigation, The judge shall instruct the jury that they should endeavor to reach a unanimous verdict but,

if they cannot reach a unanimous verdict, they may return a majority verdict of nine of the twelvemembers of the jury. The judge shall accept and record any verdict reached by nine members ofthe jury. The verdict shall bear the signatures of all jurors who have concurred in the verdict. Theverdict shall be announced in open court, either by the jury foreperson or by any of the jurorsconcurring in the verdict. After a verdict has been returned and before the jury has beendischarged, the jury shall be polled at the request of any party or upon the court's own motion.The poll shall be conducted by the clerk of the court asking each juror individually whether theverdict announced is such juror's verdict. If, upon the poll, a majority of nine members of the juryhas not concurred in the verdict, the jury may be directed to retire for further deliberations or thejury may be discharged.

(Emphasis added).15 W. Va. Code § 55-7B-6d clearly states that trial courts shall instruct juries that

7B-6d are procedural in nature and, therefore, fall within our sphere of authority pursuant to the Rule-Making Clause.Finally, we also note that,

if a statute purports to regulate a matter that is within the exclusive control of the judiciary under a specific grant ofconstitutional authority, then it makes no difference whether the right created by the statute is characterized assubstantive or procedural. In neither case could the statute prevail over conflicting provisions of a court ruleimplementing the constitutional authority in question.

Crow v. State, 866 So. 2d 1257, 1260 (Fla. Dist. App. Ct. 2004).

15 The foregoing quotation is incomplete only in that it omits the introductory sentence of W. Va. Code § 55-7B-6d. Thatintroductory sentence states: "Notwithstanding any other provision of this code, the jury in any trial of an action formedical professional liability shall consist of twelve members." This provision of the statute is addressed in Part "D"of this opinion.

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they may return a non-unanimous verdict. The use of the word "shall" by the statute means that trialcourts have no discretion in the matter. In fact, they must give a non-unanimous verdict instructionto the jury. See State v. Allen, 208 W. Va. 144, 153, 539 S.E.2d 87, 96 (1999) ("Generally, 'shall'commands a mandatory connotation and denotes that the described behavior is directory, rather thandiscretionary.")[.] Ms. Louk contends that the mandatory non-unanimous verdict instruction in W.Va. Code § 55-7B-6d is in conflict with Rule 48. We agree.

Pursuant to the Rule-Making Clause of our constitution, this Court has addressed the issue of anon-unanimous jury verdict in Rule 48. Rule 48 clearly states that "the parties may stipulate . . . thata verdict . . . of a stated majority of the jurors shall be taken as the verdict . . . of the jury." There issimply no ambiguity in Rule 48. Rule 48 provides only one method by which a jury may return anon-unanimous verdict, i.e., through a stipulation by the parties. . . . The non-unanimous verdictprovision in W. Va. Code § 55-7B-6d has stripped litigants of a right granted to them by this Courtunder our constitutional authority. The Legislature cannot remove that which was not in its powerto give. This Court has made clear that "the legislative, executive, and judicial powers . . . are eachin its own sphere of duty, independent of and exclusive of the other; so that, whenever a subject iscommitted to the discretion of the [judicial], legislative or executive department, the lawful exerciseof that discretion cannot be controlled by the [others]." Danielley v. City of Princeton, 113 W. Va.252, 255, 167 S.E. 620, 622 (1933). Promulgation of rules governing litigation in the courts of thisState rests exclusively with this Court.

Dr. Cormier contends that W. Va. Code § 55-7B-6d is not in conflict with Rule 48 because therule does not explicitly require a unanimous verdict. This argument misses the critical point of theanalysis. The issue under analysis is not whether Rule 48 implicitly or explicitly requires aunanimous verdict. Our analysis addresses the more narrow issue of whether this Court has, throughRule 48, determined how a non-unanimous verdict may be returned. We have. Rule 48 places theissue of accepting a non-unanimous verdict squarely within the discretion of the parties. In contrast,W. Va. Code § 55-7B-6d squarely imposes a non-discretionary duty upon the trial court to accepta non-unanimous verdict. Consequently, it takes no great intellectual strain to conclude that Rule48 and W. Va. Code § 55-7B-6d are in conflict. We have previously indicated that a rulepromulgated by this Court "has the effect of a statute in matters of procedure and supersedes anyprocedural statute which conflicts with the rule." State ex rel. Wilson v. County Court of BarbourCounty, 145 W. Va. 435, 442, 114 S.E.2d 904, 909 (1960). In this regard, we have held that"legislative enactments which are not compatible with those prescribed by the judiciary or with itsgoals are unconstitutional violations of the separation of powers." State ex rel. Quelch v. Daugherty,172 W. Va. 422, 424, 306 S.E.2d 233, 235 (1983).

Accordingly, we hold that the provisions contained in [§ 55-7B-6d] were enacted in violation ofthe Separation of Powers Clause, Article V, § 1 of the West Virginia Constitution, insofar as thestatute addresses procedural litigation matters that are regulated exclusively by this Court pursuantto the Rule-Making Clause, Article VIII, § 3 of the West Virginia Constitution. Consequently, W.Va. Code § 55-7B-6d, in its entirety, is unconstitutional and unenforceable.

D. The MPLA's Severability Statute Because of an amendment to the MPLA's Severability statute in 2001, our determination that the

non-unanimous verdict provision in W. Va. Code § 55-7B-6d is invalid impacts other provisions ofthe MPLA, as well as another statute. The MPLA's Severability statute, W. Va. Code § 55-7B-11[,]reads as follows:

(a) If any provision of this article as enacted during the first extraordinary session of theLegislature, 1986, in House Bill 149, or as enacted during the regular session of the Legislature,1986, in Senate Bill 714, or the application thereof to any person or circumstance is held invalid,such invalidity shall not affect other provisions or applications of this article, and to this end, theprovisions of this article are declared to be severable.

(b) If any provision of the amendments to section five of this article, any provision of new

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The Judicial Branch

section six-d of this article or any provision of the amendments to section eleven, article six,chapter fifty-six of this code as provided in House Bill 601, enacted during the sixthextraordinary session of the Legislature, two thousand one, is held invalid, or the applicationthereof to any person is held invalid, then, notwithstanding any other provision of law, everyother provision of said House Bill 601 shall be deemed invalid and of no further force and effect.

(c) If any provision of the amendments to sections six or ten of this article or any provisionof new sections six-a, six-b or six-c of this article as provided in House Bill 601, enacted duringthe sixth extraordinary session of the Legislature, two thousand one, is held invalid, suchinvalidity shall not affect other provisions or applications of this article, and to this end, suchprovisions are deemed severable.

(Emphasis added).A fair reading of the Severability statute indicates that it is a hybrid, i.e., it contains both

severability provisions and a non-severability provision. It is the non-severability provision, W. Va.Code § 55-7B-11(b), that is relevant to our decision in this case. Under the non-severabilityprovision, the Legislature has determined that, if this Court invalidates a provision to the 2001amendments to W. Va. Code § 55-7B-5, W. Va. Code § 56-6-11, or the newly created W. Va. Code§ 55-7B-6d, then all of said provisions are invalid. In other words, the non-severability provisionhas presumptively invalidated the remaining twelve juror provision in W. Va. Code § 55-7B-6d, andthe 2001 amendments to W. Va. Code § 55-7B-5 and W. Va. Code § 56-6-11, as a result of ourdetermination that the non-unanimous verdict provision in W. Va. Code § 55-7B-6d isunconstitutional. The issue of the deference to be accorded a non-severability provision appears tobe one of first impression for this Court. . . .

A few courts [have] commented on the degree of deference to be accorded to non-severabilityprovisions. These courts have held that "a non-severability clause cannot ultimately bind a court,it establishes [only] a presumption of non-severability." Biszko v. RIHT Fin. Corp., 758 F.2d 769,773 (1st Cir. 1985). That is, "despite the unambiguous command of . . . [non]severability clauses,. . . they create only a rebuttable presumption that guides – but does, not control – a reviewingcourt's severability determination." . . .

We have discerned from courts and commentators that statutory construction principles thatapply to "severability" provisions are equally applicable to "non-severability" provisions. . . .Consequently, we now hold that a non-severability provision contained in a legislative enactmentis construed as merely a presumption that the Legislature intended the entire enactment to be invalidif one of the statutes in the legislation is found unconstitutional. When a non-severability provisionis appended to a legislative enactment and this Court invalidates a statute contained in theenactment, we will apply severability principles of statutory construction to determine whether thenon-severability provision will be given full force and effect.

1. Severability principles of statutory construction. Under this Court's severability principlesof statutory construction we do not defer, as a matter of course, to severability provisions containedin statutes. Instead, we engage in an independent analysis to "determine legislative intent and theeffect of the severability section of the statute." In re Dostert, 174 W.Va. 258, 272, 324 S.E.2d 402,416 (1984), overruled on other grounds byHarshbarger v. Gainer, 184 W.Va. 656, 403 S.E.2d 399(1991). See also State ex rel. Trent v. Sims, 138 W.Va. 244, 77 S.E.2d 122 (1953) (invalidatingentire statute even though the statute contained a severability provision); Lingamfelter v. Brown, 132W.Va. 566, 52 S.E.2d 687 (1949) (same); Hodges v. Public Serv. Comm'n, 110 W. Va. 649, 159 S.E.834 (1931) (same). The reason for this procedure is that a severability provision "provides a rule ofconstruction which may aid in determining legislative intent, 'but it is an aid merely; not aninexorable command.'" . . .

This Court has adopted the following statutory construction principle that is applied indetermining the issue of severability:

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A statute may contain constitutional and unconstitutional provisions which may be perfectlydistinct and separable so that some may stand and the others will fall; and if, when theunconstitutional portion of the statute is rejected, the remaining portion reflects the legislativewill, is complete in itself, is capable of being executed independently of the rejected portion, andin all other respects is valid, such remaining portion will be upheld and sustained.

Syl. pt. 6, State v. Heston, 137 W. Va. 375, 71 S.E.2d 481 (1952). . . . 2. The twelve juror provision of W. Va. Code § 55-7B-6d. The remaining provision in W. Va.

Code § 55-7B-6d directs that "the jury in any trial of an action for medical professional liability shallconsist of twelve members." As will be shown, this provision is invalid because it is in conflict witha specific rule promulgated by this Court and because it is not severable from the unconstitutionalnon-unanimous jury verdict provision.

The issue of the number of jurors in a civil action is addressed in Rule 47(b) of the West VirginiaRules of Civil Procedure. Rule 47(b) states, in relevant part, that "unless the court directs that a juryshall consist of a greater number, a jury shall consist of six persons." Under W. Va. Code § 55-7B-6d, it is mandatory that a trial court seat twelve jurors in a medical malpractice action. However,under Rule 47(b), a jury is limited to six members unless, in the exercise of the trial court'sdiscretion, a greater number is imposed.22 Clearly, the twelve juror requirement of W. Va. Code §55-7B-6d is in conflict with Rule 47(b) and is therefore unconstitutional and invalid for that reasonalone.

Additionally, the twelve juror requirement is dependent upon and intertwined with theunconstitutional non-unanimous jury verdict provision of W. Va. Code § 55-7B-6d. In order for thenon-unanimous jury verdict provision to take effect, twelve jurors must be chosen so that aminimum of nine jurors may render a verdict. Consequently, the twelve juror provision is invalidbecause it is not severable from the unconstitutional non-unanimous jury verdict provision of W.Va. Code § 55-7B-6d.

3. Six Member Jury Exemption in Amendment to W. Va. Code § 56-6-11. The 2001amendment to W. Va. Code § 56-6-11 added subsection (c), which provides:

The provisions of this section providing for a six member jury trial do not apply toany proceeding had pursuant to article seven-b, chapter fifty-five of this code, theprovisions of which apply to all cases involving a medical professional liability action.

Clearly, W. Va. Code § 56-6-11(c)'s exemption of a six person jury in medical malpractice casesis dependent upon the twelve person provision in W. Va. Code § 55-7B-6d, which we haveinvalidated. Consequently, we find the 2001 amendment to W. Va. Code § 56-6-11(c) is inseverablefrom W. Va. Code § 55-7B-6d and is therefore invalid. . . .

IV.CONCLUSION

. . . [We] reverse the order denying a new trial and remand this case for a new trial consistentwith this opinion.

Reversed and Remanded.

[A concurring opinion by Justice Albright and a dissenting opinion by Justice Maynard areomitted.]

22One exception exists. Pursuant to Rule 71A, of the West Virginia Rules of Civil Procedure, twelve jurors are requiredin eminent domain proceedings. It has been noted that "Rule 71A articulates the constitutional right to a jury of twelvepersons in an eminent domain proceeding." Cleckley, Davis, & Palmer, Litigation Handbook § 71A(b), at 1055. See alsoW. Va. Const. art. III, § 9 (requiring 12 jurors in eminent domain proceedings).

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The Judicial Branch

Benjamin, Justice, concurring, in part, and dissenting, in part.

. . . We must focus our review upon whether portions of the MPLA, purporting to govern a sub-category of civil liability cases, are consistent with our Constitution, or, if not, whether they mustyield to our Constitution's delegation of such authority to the Judiciary (i.e., this Court's rulesgoverning the practice and procedure applicable to civil liability cases brought in the courts of thisState). While the Legislature may have chosen to enact certain statutory provisions applicable onlyto medical professional liability actions in an attempt to stabilize the availability of health careservices in this State, the Legislature may not in so doing appropriate for itself the constitutionalauthority to supercede or nullify this Court's constitutionally empowered procedural rules or to denylong-standing rights reserved to the people.

Thus, I concur with the majority's conclusion that the non-unanimous verdict provision of W.Va. Code § 55-7B-6d (2001) is unconstitutional because it violates Article V, Section 1 of the WestVirginia Constitution. Article V, Section 1, known as the "Separation of Powers Clause," mandatesthat the powers of the legislative, executive and judicial branches of government remain separateand distinct. The West Virginia Constitution, likewise, specifies each branch's legitimate powers.Article VIII, Section 3 of the West Virginia Constitution, vests this Court with the exclusive powerto enact rules governing "process, practice, and procedure" in the courts of this State.

I agree with the majority that rules governing jury verdicts, such as size and unanimityrequirements, are procedural matters over which this Court has sole authority. . . . Rules governingjury size and unanimity are deemed procedural because they do not affect substantive rights. Rather,they determine how substantive rights are to be enforced. So long as this Court has a validly enactedprocedural rule governing an issue, the Legislature may not seek to circumvent such a rule underthe guise of tort reform or any other perceived immediacy. Rule 48 of the West Virginia Rules ofCivil Procedure adopted in 1998, three years prior to the enactment W. Va. Code § 55-7B-6d,permits a majority verdict in the very limited circumstances where the parties stipulate to a less thanunanimous verdict. Thus, adoption of Rule 48 . . . modified the long standing common lawunanimous verdict requirement in limited situations. . . .

Likewise, I concur that the twelve person jury requirement contained within W. Va. Code § 55-7B-6d is an unconstitutional violation of the Separation of Powers Clause because it, too, infringesupon this Court's rule making power. As noted above, rules governing the size of a jury areprocedural matters governed by this Court's rules. I dissent, however, from the majority's reversalof the trial court's decision herein to empanel a twelve member jury. Rule 47(b) of the West VirginiaRules of Civil Procedure vests a trial court with the discretion to direct that a jury consist of morethan six jurors. Specifically, Rule 47(b) provides, in pertinent part, "unless the court directs that ajury shall consist of a greater number, a jury shall consist of six persons." The record is clear thatthe trial court directed that the jury in this matter consist of twelve persons. However, the recordbefore this Court does not indicate why the trial court directed that twelve persons be empaneled onthe jury. I choose not to speculate that the trial court had an improper reason, i.e., a belief that theunconstitutional provisions contained within W. Va. Code § 55-7B-6d were binding on it, for thecourt's decision to empanel a twelve person jury. As the record is unclear as to the reason for thedecision to empanel twelve persons, Appellant's burden has not been met. I would not reverse thisdiscretionary decision. . . .

I conclude that a legislative body may not, years after it has dissolved and been replaced by anew legislative body, reach out from the grave to invalidate an otherwise valid law of this state inthe manner intended by this clause. The insertion of a "poison pill" clause into otherwise validlegislation constitutes a usurpation of this Court's role in determining the validity of lawfully enactedstatutes. Our system of governance does not envision legislative "dares" to this Court to notinvalidate unconstitutional legislative enactments. A non-severability clause, such as here,improperly seeks to protect an unconstitutional enactment from legitimate scrutiny by the judicial

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branch by linking it to viability of valid law (law which has been followed and properly relied uponin this State for years). By such "poison pills", the message to this Court is clear – either we permitunconstitutional legislation to stand, or otherwise valid statutes which have been relied upon andused for years by citizens of West Virginia become collateral damage. The Judiciary must resist suchan injection of politics into this Court's decisions. This Court's duty to determine theconstitutionality of legislation must not be impeded, constrained, threatened or cajoled. Separationof Powers, a foundation of our constitutional system of governance, proscribes any such legislativeposturing which would cause us indirectly to do that which we would not do directly.

The non-severability provision of W. Va. Code § 55-7B-11(b) violates the Separation of PowersClause of our Constitution. It constitutes an improper attempt by the Legislature to usurp this Court'sindependent consideration of the constitutionality of individual statutes. Any attempt to improperlyinfluence this Court's duty of constitutional scrutiny by hinging the validity of otherwiseconstitutional legislation upon the requirement that this Court uphold otherwise unconstitutionallegislation is intolerable and, therefore, invalid. The 2001 Legislature cannot now act to repealotherwise valid legislation in 2005. Should the current Legislature seek to do so, it may.

STATE OF WEST VIRGINIA EX REL. WORKMAN v. CARMICHAEL,241 W. Va. 105, 819 S.E.2d 251 (2018).

Matish, Acting Chief Justice.

[The framing of this case and other issues relating to Article V and the separation of powersappear in Chapter 5, supra.]

B.An Administrative Rule Promulgated by the Supreme Court Supersede[s] Statutes in

Conflict with [It]The first issue we address is the Petitioner’s contention that two of the Articles of Impeachment

against her are invalid, because they can only be maintained by violating the constitutional authorityof the Supreme Court to promulgate rules that have the force of law and supersede any statute thatconflicts with them. The two Articles of Impeachment in question are Article IV26 and Article VI.27

Both of those Articles charge the Petitioner with improperly overpaying senior-status judges. ThePetitioner argues that the statute relied upon by Article IV and Article VI is in conflict with anadministrative order promulgated by the Chief Justice.

We begin by observing that the 1974 Judicial Reorganization Amendment of the Constitutionof West Virginia centralized the administration of the state’s judicial system and placed theadministrative authority of the courts in the hands of this Court. . . . The Amendment rewrote ArticleVIII, substituting §§ 1 to 15 for former §§ 1 to 30, amended § 13 of Article III, and added §§ 9 to13 to Article IX. Justice Cleckley made the following observations regarding the changes:

26[Article IV stated that Chief Justice Margaret Workman, and Justice Robin Davis signed and approved contracts necessary “tooverpay certain Senior Status Judges in violation of the statutory limited maximum salary for such Judges, which overpayment isa violation of Article VIII, § 7 of the West Virginia Constitution, stating that Judges ‘shall receive the salaries fixed by law’ and theprovisions of W.Va. Code § 51-2-13 and W.Va. Code § 51-9-1 0 . . . and in violation of the provisions of Canon I and Canon II ofthe West Virginia Code of Judicial Conduct.”]

27Article VI stated that Justice Margaret Workman signed certain Forms WV 48, to retain and compensate certain Senior StatusJudges the execution of which forms allowed the Supreme Court of Appeals to overpay those certain Senior Status Judges in violationof the statutorily limited maximum salary for such Judges, which overpayment is a violation of Article VIII, § 7 of the West VirginiaConstitution, stating that Judges ‘shall receive the salaries fixed by law’ and the provisions of W.Va. Code § 51-2-13 and W.Va. Code§ 51-9-10 [and] in violation of the provisions of Canon I and Canon II of the West Virginia Code of Judicial Conduct.”]

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The Judicial Branch

These changes include the entirety of the Reorganization Amendment and its concept of aunified court system administered by this Court and not the legislature. More specifically, thatsame amendment altered Section 1 of Article VIII to provide that the judicial power of the State“shall be vested solely ” in this Court and its inferior courts. The predecessor provision toSection 1, though similarly worded, did not include the limiting adverb “solely.” . . . Under theAmendment, the Judiciary, not the executive branch, is vested with the authority to resolve anysubstantial, genuine, and irreconcilable administrative conflicts regarding court personnel. Thejudicial system was revised, among other things, to simplify the administrative process and tocomplement prior nonconflicting statutory and case law. Clearly, the administrative structurerequires that if there is a conflict, we must not only consider the concerns of the parties, but alsolook at the hierarchy of the court system. The administration of the court is very important to theunobstructed flow of court proceedings and business. Court actions are complicated enoughwithout adding to their complexity a struggle over every administrative decision to be made. Thepurpose of judicial administrative authority is to enhance and simplify our court system and notto burden it.

State ex rel. Frazier v. Meadows, 193 W. Va. 20, 26-28, 454 S.E.2d 65, 71-73 (1994). ProfessorBastress has compared the general authority of the Supreme Court before and after theReorganization Amendment as follows:

The third and fourth paragraphs, added by the Judicial Reorganization Amendment of 1974,establish the unitary judicial system in West Virginia. The first of those grants the court thepower to promulgate rules of procedure relating to all aspects of judicial proceedings in thestate. Although the court had previously asserted that as an inherent power, it also concededthat the legislature retained the ultimate authority. After the 1974 amendment, however, thecourt has ruled, in justifiable reliance on the language of section 3, that the court’s rulessupersede any legislation in conflict with a court-promulgated rule.

Bastress, West Virginia State Constitution[.] See Foster v. Sakhai, 210 W. Va. 716, 724 n.3, 559S.E.2d 53, 61 n.3 (2001) (“the constitutional power and inherent power of the judiciary preventanother branch of government from usurping the Court's authority.”).

One of the most important changes that the Reorganization Amendment made was to provide thisCourt with the exclusive constitutional authority to promulgate administrative rules for the effectivemanagement of the judicial system, that “have the force and effect of statutory law and operate tosupersede any law that is in conflict with them.” Syl. pt. 1, in part, Stern Brothers, Inc. v. McClure,160 W.Va. 567, 236 S.E.2d 222 (1977). This authority is found in Article VIII, § 3 of theConstitution of West Virginia. We will address the relevant text of both provisions separately.29

To begin, we will look at the Rule-Making Clause of Section 3. The relevant text of theRule-Making Clause of Section 3 provides as follows:

The court shall have power to promulgate rules for all cases and proceedings, civil andcriminal, for all of the courts of the state relating to writs, warrants, process, practice andprocedure, which shall have the force and effect of law.

Section 3 unquestionably provides this Court with the sole constitutional authority to promulgaterules for the judicial system, and demands that those rules have the force of law. See Syl. pt. 5, Statev. Wallace, 205 W. Va. 155, 517 S.E.2d 20 (1999)[.] [Additional citations are omitted.]

The responsibility imposed on this Court by Section 3 was articulated in State ex rel. Bagley v.Blankenship, 161 W.Va. 630, 246 S.E.2d 99 (1978):

The Judicial Reorganization Amendment, Article VIII, Section 3, of the Constitution, placedheavy responsibilities on this Court for administration of the state's entire court system. The

29The authority of the Court to promulgate rules is also contained in Article VIII, § 8. This provision is discussed in the next sectionof this opinion.

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mandate of the people, so expressed, commands the members of the Court to be alert to theneeds and requirements of the court system throughout the state.

Bagley, 161 W.Va. at 644–45, 246 S.E.2d at 107. “Not only does our Constitution explicitly vestthe judiciary with the control over its own administrative business, but it is a fortiori that thejudiciary must have such control in order to maintain its independence.” Syl. pt. 2, State ex rel.Lambert v. Stephens, 200 W.Va. 802, 490 S.E.2d 891 (1997). . . . In carrying out the responsibilityimposed by Section 3, this Court has not been hesitant in finding statutes void when they were inconflict with any rule promulgated by this Court. See Syl. pt. 1, Witten v. Butcher, 238 W. Va. 323,794 S.E.2d 587 (2016)[.] [Numerous citations and their holdings are omitted.]

Before we address the issue of overpayment of senior-status judges, we must examine the textof the Senior-Status Clause found in Article VIII, § 8 of the Constitution of West Virginia providesas follows:

A retired justice or judge may, with his permission and with the approval of the supreme courtof appeals, be recalled by the chief justice of the supreme court of appeals for temporaryassignment as a justice of the supreme court of appeals, or judge of an intermediate appellatecourt, a circuit court or a magistrate court. . . .However, as a result of the Judicial Reorganization Amendment of 1974, the legislature wasdivested of all administrative powers over state court judges. No provision similar to former art.VIII, § 15 [which conferred those] exists. Instead, this Court was given “general supervisorycontrol over all intermediate appellate courts, circuit courts and magistrate courts,” and the ChiefJustice, as “administrative head of all the courts,” was specifically given the power of temporaryassignment of circuit judges.

Crabtree, 180 W. Va. at 427 n.3, 376 S.E.2d at 633 n.3 (internal citations omitted). . . The decision in Stern Bros. v. McClure, 160 W. Va. 567, 236 S.E.2d 222 (1977) addressed the

issue of statutes that attempted to control assignments of judges, but were in conflict with anadministrative rule of this Court. . . . The opinion reasoned as follows:

. . . [The Court’s] rules have the force and effect of statutory law by virtue of Article VIII,Section 8 of the Judicial Reorganization Amendment.... Prior to the adoption of the JudicialReorganization Amendment, there may have been some question as to this Court's supervisorypowers over lower courts. It is now quite clear under the Judicial Reorganization Amendmentthat considerable supervisory powers have been conferred upon this Court. ...

Undoubtedly, one of the reasons behind the Judicial Reorganization Amendment was toprovide a more simplified system of handling the problem of securing a replacement judge wherethe original judge is disqualified. . . .

The administrative rule promulgated by this Court now controls the procedure for selectionof a temporary judge where a disqualification exists as to a circuit court judge. Under ArticleVIII, Section 8 of the West Virginia Constitution, it operates to supersede the existing statutoryprovisions found in W.Va. Code, 51-2-9 and -10, and W.Va. Code, 56-9-2, insofar as they relateto the selection of special judges or the assignment of the case to another circuit judge when acircuit judge is disqualified.

Stern, 160 W. Va. at 572-575, 236 S.E.2d at 225-227.In the final analysis, the foregoing discussion instructs this Court that statutory laws that are

repugnant to the constitutionally promulgated rules of this Court are void. With these legalprinciples in full view, we turn to the merits of the issue presented.

Two of the Articles of Impeachment brought against the Petitioner, Article IV and Article VI,charge her with overpaying senior-status judges in violation of the maximum payment allowedunder W.Va. Code § 51-9-10. The Articles of Impeachment also state that the overpayments violatedW.Va. Code § 51-2-13, W.Va. Const. Art. VIII, § 7, an administrative order of the Supreme Courtand Canon I and II of the West Virginia Code of Judicial Conduct. The Articles also allege that theoverpayments “potentially” violate two criminal statutes: W.Va. Code § 61-3-22 (falsification of

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accounts) and W.Va. Code § 61-3-24 (obtaining money by false pretenses).32 The viability of allof the alleged violations in the two Articles hinge upon whether the Petitioner overpaid senior-statusjudges. The determination of overpayment is controlled by W.Va. Code § 51-9-10, which limits thepayment to senior-status judges. The [text] of W.Va. Code § 51-9-10 provides [that] “the per diemand retirement compensation of a senior judge shall not exceed the salary of a sitting judge, andallowances shall also be made for necessary expenses as provided for special judges under articlestwo and nine of this chapter.” (Emphasis added.)

The Petitioner does not dispute that she authorized the payment of senior-status judges, whennecessary, in excess of the limitation imposed by the statute. Although the Petitioner has advancedseveral arguments as to why her conduct was valid, we need only address one of her arguments. Thatargument centers on an administrative order promulgated by the Chief Justice on May 17, 2017. The order expressly authorized the payment of senior-status judges in excess of the limitationimposed by W.Va. Code § 51-9-10. The order stated that it was being promulgated under theauthority of Article III, §§ 3, 8, and 17. The order also stated the reason for the decision to authorizepayment in excess of the statutory limitation:

In the vast majority of instances, the statutory proviso [W.Va. Code § 51-9-10] does notinterfere with providing essential services. However, in certain exigent circumstances involvingprotracted illness, lengthy suspensions due to ethical violations, or other extraordinarycircumstances, it is impossible to assure statewide continuity of judicial services withoutexceeding the payment limitation imposed by the statutory proviso.

. . . West Virginia Code § 51-9-10, in its entirety, is repugnant to Article VIII, § 3 and § 8. Thestatute seeks to control a function of the judicial system, appointing senior-status judges fortemporary service, when Article VIII, § 8 has expressly given that function exclusively to theSupreme Court. Moreover, the statute’s limitation on payment to senior-status judges is void andunenforceable, because of the administrative order promulgated on May 17, 2017. See Syl. pt. 4,State ex rel. Brotherton v. Blankenship, 157 W.Va. 100, 207 S.E.2d 421 (1973) (“The judiciarydepartment has the inherent power to determine what funds are necessary for its efficient andeffective operation.”). Finally, as we have long held, “[l]egislative enactments which are notcompatible with those prescribed by the judiciary or with its goals are unconstitutional violationsof the separation of powers.” State ex rel. Quelch v. Daugherty, 172 W. Va. 422, 424, 306 S.E.2d233, 235 (1983). To be clear, and we so hold, West Virginia Code § 51-9-10 (1991) violates theSeparation of Powers Clause of Article V, § 1 of the West Virginia Constitution, insofar as thatstatute seeks to regulate judicial appointment matters that are regulated exclusively by this Courtpursuant to Article VIII, § 3 and § 8 of the West Virginia Constitution. Consequently, W.Va. Code§ 51-9-10, in its entirety, is unconstitutional and unenforceable.36

32We must note that “potentially” violating a criminal statute is not wrogful impeachable conduct. Therefore the language in theArticles of Impeachment that state that W. Va. Code § 61-3-22 and W. Va. Code § 61-3-24 were “potentially” violated aremeaningless allegations.

36We summarily dispense with the Articles of Impeachment’s reference to the Salary Clause of Article VIII, § 7 as a source oflegislative authority for regulating payments to senior-status judges. This clause does not provide such authority. The Salary Clauseprovides as follows:Justices, judges and magistrates shall receive the salaries fixed by law, which shall be paid entirely out of thestate treasury, and which may be increased but shall not be diminished during their term of office, and they shall receive expensesas provided by law. The salary of a circuit judge shall also not be diminished during his term of office by virtue of the statutory courtsof record of limited jurisdiction of his circuit becoming a part of such circuit as provided in section five of this article.It is clear fromthe plain text of the Salary Clause that it only applies to salaries of judges “during their term of office.” See Syl. pt. 1, State ex rel.Trent v. Sims, 138 W.Va. 244, 77 S.E.2d 122 (1953) (“If a constitutional provision is clear in its terms, and the intention of theelectorate is clearly embraced in the language of the provision itself, this Court must apply and not interpret the provision.”).Senior-status judges are retired judges and do not hold an office. Therefore, the Salary Clause does not provide the Legislature withauthority to regulate the per diem payment of senior-status judges.

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In light of our holding, the Petitioner did not overpay any senior-status judge as alleged in ArticleIV and Article VI of the Articles of Impeachment, therefore the Respondents are prohibited fromfurther prosecution of the Petitioner under those Articles.

C.The Supreme Court has Exclusive Jurisdiction to Determine whether a Judicial Officer’s

Conduct Violates a Canon of the Code of Judicial ConductThe Petitioner next contends that Article XIV of the Impeachment Articles is invalid because it

is based upon alleged violations of the West Virginia Code of Judicial Conduct, which, shecontends, is constitutionally regulated by the Supreme Court.37 To be blunt, Article XIV is anunwieldy compilation of allegations that culminate with the accusation that the Petitioner’s conduct,with respect to the allegations, violated Canon I38 and Canon II39 of the Code of Judicial Conduct.We agree with the Petitioner that this Court has exclusive constitutional jurisdiction over conductalleged to be in violation of the Code of Judicial Conduct.

The controlling constitutional authority is set out under Article VIII, § 8 of the Constitution ofWest Virginia. We have held that “[p]ursuant to article VIII, section 8 of the West VirginiaConstitution, this Court has the inherent and express authority to ‘prescribe, adopt, promulgate andamend rules prescribing a judicial code of ethics, and a code of regulations and standards of conductand performances for justices, judges and magistrates, along with sanctions and penalties for anyviolation thereof [.]’ ” Syl. pt. 5, Committee on Legal Ethics v. Karl, 192 W.Va. 23, 449 S.E.2d 277(1994). The relevant text of Section 8 provides as follows:

Under its inherent rule-making power, which is hereby declared, the supreme court of appealsshall, from time to time, prescribe, adopt, promulgate and amend rules prescribing a judicial codeof ethics, and a code of regulations and standards of conduct and performances for justices,judges and magistrates, along with sanctions and penalties for any violation thereof, and thesupreme court of appeals is authorized to censure or temporarily suspend any justice, judge ormagistrate having the judicial power of the state, including one of its own members, for anyviolation of any such code of ethics, code of regulations and standards, or to retire any suchjustice, judge or magistrate who is eligible for retirement under the West Virginia judges'retirement system (or any successor or substituted retirement system for justices, judges andmagistrates of this state) and who, because of advancing years and attendant physical or mentalincapacity, should not, in the opinion of the supreme court of appeals, continue to serve as ajustice, judge or magistrate.* * *When rules herein authorized are prescribed, adopted and promulgated, they shall supersede alllaws and parts of laws in conflict therewith, and such laws shall be and become of no furtherforce or effect to the extent of such conflict.This Court’s express constitutional authority to adopt rules of judicial conduct and discipline is

obvious from the language of Section 8. Pursuant to this express authority, we have adopted theCode of Judicial Conduct and the Rules of Judicial Disciplinary Procedure. Under Rule 4.10 andRule 4.11 of the Rules of Judicial Disciplinary Procedure, this Court has the exclusive authority todetermine whether a justice, judge, or magistrate violated the Code of Judicial Conduct. The recorddoes not disclose that this Court has found that the Petitioner violated Canon I or Canon II, based

37Article XIV stated that the Justices had failed to develop adequate policies to control and account for the use of public funds bythe Court.

38Canon I states the following:A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, andshall avoid impropriety and the appearance of impropriety.

39II states the following:A judge shall perform the duties of judicial office impartially, competently, and diligently.

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upon the allegations alleged in Article XIV of the Articles of Impeachment. Moreover, even if therecord had disclosed that the Petitioner was previously found to have violated the Canons inquestion, those violations could not have formed the basis of an impeachment charge. This isbecause of the limitations imposed upon the scope of a Canon violation that is found by this Court.The following is provided in Item 7 of the Scope of the Code of Judicial Conduct:

The Code is not designed or intended as a basis for civil or criminal liability. Neither is itintended to be the basis for litigants to seek collateral remedies against each other or to obtaintactical advantages in proceedings before a court.

It is quite clear that Item 7 prohibits a Canon violation from being used as the “basis” of a civil orcriminal charge and, thus, could not be used as a basis for impeaching the Petitioner.41 This Courtobserved in In re Watkins, 233 W. Va. 170, 757 S.E.2d 594 (2013):

Just as the legislative branch has the power to examine the qualifications of its own membersand to discipline them, this Court has the implicit power to discipline members of the judicialbranch. The Court has this power because it is solely responsible for the protection of thejudicial branch, and because the power has not been constitutionally granted to either of theother two branches.

Watkins, 233 W. Va. at 177, 757 S.E.2d at 601.It is quite evident to this Court that the impeachment proceedings under Article XIV of the

Articles of Impeachment requires the Court of Impeachment to make a determination that thePetitioner violated Canon I and Canon II. Such a determination in that forum violates the separationof powers doctrine, because pursuant to Article VIII, § 8 of the Constitution of West Virginia, thisCourt has the exclusive authority to determine whether the Petitioner violated either of thoseCanons. In other words, and we so hold, this Court has exclusive authority and jurisdiction underArticle VIII, § 8 of the West Virginia Constitution and the rules promulgated thereunder, to sanctiona judicial officer for a violation of a Canon of the West Virginia Code of Judicial Conduct.Therefore, the Separation of Powers Clause of Article V, § 1 of the West Virginia Constitutionprohibits the Court of Impeachment from prosecuting a judicial officer for an alleged violation ofthe Code of Judicial Conduct.

The Respondents have argued that “to hold that the Legislature cannot consider the Code ofJudicial Conduct in its deliberation of impeachment proceedings against a judicial officer wouldhave the absurd result of prohibiting removal from office for any violations of the Code of JudicialConduct.” This argument misses the point. Unquestionably, the Legislature can consider in itsdeliberations whether there was evidence showing that this Court found a judicial officer violateda Canon. However, the Canon violation itself cannot be the basis of the impeachment charge—atmost it could only act as further evidence for removal based upon other valid charges of wrongfulconduct.

In light of our holding, the Court of Impeachment does not have jurisdiction over the allegedviolations set out in Article XIV of the Articles of Impeachment, therefore the Respondents areprohibited from further prosecution of the Petitioner under that Article as written.

NOTE

As Louk makes clear, the Court has repeatedly emphasized that Article VIII, § 3 confers uponit authority to create rules and regulations for the administration of the courts, their cases, and theirbusiness. Thus, in concluding that the Court had the power to hear an interlocutory appeal from adenial of a motion for a preliminary injunction, the Court held that it was not restricted by a statutearguably confining its appellate review to appeals of final judgments. State ex rel. McGraw v.Telecheck Services, 212 W.Va. 438, 582 S.E.2d 885 (2003). According to Justice Starcher’s opinionfor the majority, “the Legislature’s power with respect to this Court’s jurisdiction is additive, notsubtractive or restrictive. ‘Appellate jurisdiction’ is ‘the power of a reviewing court to correct error

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in a trial court proceeding.’ . . . West Virginia Constitution art. [VIII], sec. 3 provides that this Courthas ‘appellate jurisdiction’ over ‘civil cases in equity.’ This language does not limit this Court’spower to review and correct error in cases in equity to ‘final judgments.’”

Recall, too, the assertion of Article VIII judicial powers against the legislative impeachmentproceedings in State ex rel. Workman v. Carmichael at the end of Chapter 4, supra.

C. Circuit Courts

Read Article VIII, § 5-6, 9.

INTRODUCTION

[Extracted from ROBERT M. BASTRESS, JR., THE WEST VIRGINIA STATE CONSTITUTION 246-48(2nd ed., Oxford University Press, 2016).]

Article VIII, § 5 establishes a system of circuit courts, the state’s trial courts of generaljurisdiction. The Judicial Amendment of 1974 consolidated sections 10, 11, 13, 14, and 15 of theold Article VIII into § 5, deleted the language in section 13 that had made the original division ofthe state into circuits, and made a few other changes.

The first paragraph of section 5 provides for the election of circuit judges to eight-year terms andleaves to the legislature the option of making the elections nonpartisan. The legislature exercisedthat option in 2015, so beginning in 2016 circuit judges will be elected on a nonpartisan basis. Theparagraph also converted “each statutory court of record of limited jurisdiction” to a circuit court.The provision eliminated courts the legislature had created in some of the more populous countiesto handle especially heavy case loads. The Supreme Court has held that section 5 not only abolishedcourts of limited jurisdiction, but also divested the legislature of any ability to create new ones.Starcher v. Crabtree (1986). Thus, a post-1974 statute that created family law masters to hear andrender final judgments in domestic cases violated this section and section 6. Starcher; See Art. VIII,§ 16, infra (establishing family courts). Finally, the paragraph requires that circuit judges beresidents of their circuits during their entire term of office.

The second paragraph empowers the legislature to adjust the number of judges in a circuit (solong as decreases are not implemented during an affected judge’s term of office), to rearrange thecircuits’ configuration, and to change the number of circuits. Any exercise of the latter two powersmay be implemented only in the year prior to that in which judges are elected for their full terms inthe redefined circuits. Judges who are in office when their circuits are changed in any way shall, ifthey continue to meet the circuit residency requirement, continue to serve to the end of their termor until resignation or removal.

According to the third paragraph of section 5, each circuit gets at least one judge and as manymore as are needed. In keeping with the pyramidal design of the 1974 Judicial Amendment, eachcircuit with two or more judges selects a chief judge, and that person—or the circuit judge in single-judge circuits—serves as the chief administrator for the circuit and oversees the operations of thecourt, the circuit clerk’s office, and the magistrate courts. See sec. 6, below. By virtue of the fourthparagraph, the supreme court has the duty to allocate responsibilities among the judges in multi-judge circuits, but it is an authority that the court has not exercised, at least in the absence of inter-judge disputes. Rather, the Court has left the allocation of business up to the individual circuits.

The final paragraph requires that circuit court must be held in every county in the state at leastthree times a year. This provision is of greatest significance for multiple-county circuits and ensuresthat easy access to court can be had even in those counties that do not have a resident judge. Section5 assigns to the supreme court the task of setting the times at which each circuit court shall sit. SeeW. Va. Trial Court Rules. Rules 2.01 to 2.31.

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Section 6 establishes the jurisdiction of circuit courts and vests administrative authority in chiefcircuit judges for multiple-judge circuits and in circuit judges for single-judge circuits. Thejurisdictional component of section 6 is substantially similar to Article VIII, section 12 under theoriginal 1872 Constitution and, except for some differences regarding the common law writs, toArticle VI, section 6 of the 1863 Constitution.

The first paragraph empowers the circuit courts to issue common law writs to control magistratecourts, much as section 3 does for the supreme court to control inferior tribunals. See thecommentary to section 3 for a discussion of those writs. Section 6’s second paragraph provides themost critical jurisdictional provisions. The broad jurisdictional powers created by the paragraph givecircuit courts the authority to hear as original matters all criminal cases; all civil cases at law(referring to actions derived from, or akin to, common law causes of action) where the amount incontroversy is less than $100, exclusive of interest and costs; all cases in equity (referring to suitsseeking equitable relief, such as an injunction); and any action based on one of the common lawextraordinary writs (mandamus, quo warranto, etc.). The last power is shared concurrently with thesupreme court (see Art. VIII, sec. 3). The amount-in-controversy minimum for cases at law may beincreased by the legislature. (Section 51-2-2 of the West Virginia Code currently sets the thresholdat $2,500.) Cases in equity and proceedings seeking an extraordinary writ are not subject to theamount-in-controversy limitation. Section 6 permits county commissions to continue to hear probatematters, but also authorizes the legislature to assign such cases to the circuit courts. At this time, thelegislature has not done so.

Section 6’s third paragraph confers appellate jurisdiction on the circuit courts to reviewmagistrate court decisions. The legislature may, however, divest that authority by conferring itexclusively on the supreme court or, if ever created, intermediate appellate court. By virtue of thefourth paragraph, the legislature may expand the circuit courts’ powers beyond those specificallyprovided in this section.

The final two paragraphs set forth the circuit courts’ administrative powers. Each circuit, subjectto supreme court approval, may promulgate local rules of procedure. The supreme court has,however, promulgated a set of trial court rules that pre-empts most local rules. In addition, and inkeeping with the hierarchical scheme of the 1974 Judicial Amendment, the last paragraph makes thecircuit judge in single-judge circuits and the chief judge in those with multiple judges theadministrative head of all the courts in the circuit. As such, he or she possesses, “except to the extentthat the circuit courts are given explicit direction by the Supreme Court of Appeals, the power tocontrol the local affairs of the circuit.” Carter v. Taylor, 180 W. Va. 570, 572, 378 S.E.2d 291, 293(1989) (quoting Rutledge v. Workman, 175 W. Va. 375, 381, 332 S.E.2d 831, 836 (1985)).

RUTLEDGE v. WORKMAN,175 W. Va. 375, 332 S.E.2d 831 (1985).

NEELY, Justice.

The issues presented by this case concern the role of the Clerk of the West Virginia CircuitCourt, the proper exercise of the Court's jurisdiction and administrative authority, and the inherentdignity of the circuit court itself. The petitioner, Phyllis J. Rutledge, is the Clerk of the Circuit Courtof Kanawha County and the respondent, Margaret Workman, is a Judge of that Circuit Court.

This novel prohibition proceeding arose when Judge Margaret Workman entered an orderprohibiting the transfer of Ms. DeeAnn Hill, one of Mrs. Rutledge's Deputy Circuit Clerk's, out ofJudge Workman's court to other duties. Judge Workman's order was then ratified by an order of theChief Circuit Judge, A Andrew MacQueen. Although Mrs. Rutledge admits that W. Va. Code[6-3-1(a)(1)] requires Court approval before she may hire personnel initially, she asks us to vindicateher position that she has absolute, complete, and unfettered discretion to fire, assign, and reassign

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personnel in the office of the circuit clerk. . . . From [the record] we glean that the Circuit Court of Kanawha County and the office of its

circuit clerk is a daily battleground for sordid, unnecessary, and debilitating political in-fighting.This particularly concerns us because Kanawha County has a population of roughly 231,414inhabitants, is the seat of State government, is the largest county in the State, and is the residenceof most state officials. Accordingly its court is crowded with important government matters[.] . . .

The Governor appointed Judge Margaret Workman to office in November, 1981 and at that timeMrs. Rutledge was already the elected circuit court clerk. During the first months of her tenure,Judge Workman labored without the benefit of a courtroom clerk until March 1982 when Mrs.Rutledge assigned Mrs. Iris Brisendine. Mrs. Brisendine performed capably and to Judge Workman'scomplete satisfaction. After a year, however, Mrs. Rutledge re-assigned Mrs. Brisendine to the courtof Judge Robert K. Smith and assigned Ms. Louise Owenby, who had been Judge Smith's clerk, toJudge Workman. Both Judge Workman and Judge Smith objected in writing to this exchange ofclerks, but Mrs. Rutledge ignored their request for cooperation. In her deposition, Mrs. Rutledgeacknowledged that Ms. Owenby was "not a good courtroom clerk," but Mrs. Rutledge made noattempt to discharge Ms. Owenby or to re-assign her to other duties. Nonetheless, Judge Workmanworked with Ms. Owenby and after awhile found her courtroom work acceptable.

Chief Judge MacQueen testified that he attempted to intercede at the time Mrs. Rutledgetransferred Mrs. Brisendine and replaced her with Ms. Owenby, but that Mrs. Rutledge refused toreconsider the matter. Furthermore, according to Judge MacQueen, Mrs. Rutledge's reason formaking the transfer was that Ms. Brisendine's loyalties were being transferred to Judge Workmanand it was necessary for Mrs. Rutledge to re-establish "who was boss."

In February 1984, Mrs. Rutledge transferred Ms. Owenby from Judge Workman's court andreplaced her with Ms. Jacqueline Ray. Judge Workman soon discharged Ms. Ray for rankinsubordination and disrespect to the judge in the presence of others. Nevertheless, three days laterMrs. Rutledge re-employed Ms. Ray as a staff assistant without any serious inquiry into thecircumstances surrounding Ms. Ray's dismissal by Judge Workman.

After Judge Workman had Ms. Ray removed as an officer of her court, there was a periodbetween February and May 1984, during which Judge Workman was without a regularly assignedcourtroom clerk. Because she often was forced to work with more than one clerk during the courseof a single judicial day, Judge Workman repeatedly asked Mrs. Rutledge's administrative assistantto assign a deputy clerk to her court on a permanent basis. Finally in May, 1984, Ms. DeeAnn Hillwas assigned to Judge Workman.

In November 1984, however, Mrs. Rutledge notified the judges that she would transfer variouscourtroom clerks, including Ms. Hill. Upon receiving that notice, Judge Workman entered her orderprohibiting the transfer of Ms. Hill without the court's approval, and the record clearly shows thatfrom the point of view of proper judicial administration, the order was more than justified. Not onlywas Judge Workman's efficiency impaired by the assignment of incompetent clerks to her court, andthe transfer of competent clerks out of her court, but also on many occasions her court's efficiencywas impaired by the absence of any clerks whatsoever.

Other events add credence to Judge Workman's side of the case. Judge MacQueen testified thatMrs. Rutledge transferred Ms. Micky Amick, Judge MacQueens' courtroom clerk, and replaced herwith Mr. Joseph Schirrman, Mrs. Rutledge's son-in-law. Judge MacQueen described Ms. Amick as"probably the best clerk I have ever had . . . . because of her proficiency, her willingness to learn,. . . . and her ability to work together with me, with my secretary, my bailiff, and my court reporter."According to Judge MacQueen, the performance of Mrs. Rutledge's son-in-law has been less thanstellar. The record in this case is replete with accusations, counter-accusations, and other billingsgateconcerning the relation of personnel decisions in the circuit clerk's office to factional politics inKanawha County. None of that information, however, is relevant to the disposition of this case. Weare asked only to decide today whether the clerk of a circuit court is part of that court and subject

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to the direction of the chief circuit judge, or, on the contrary, whether the clerk is an independent,elected official with unbridled discretion over the administration of her office. The respective meritsof political positions in a county have no bearing on a principled resolution of that issue. We findthat the law on this subject is clear: the circuit clerk, although elected by the voters, is completelysubject to the control of the chief circuit judge of the circuit court and failure to follow to the letterand in the utmost good faith the direction of the judge or chief circuit judge is grounds for removalfrom office. Furthermore, a circuit judge has complete control of the deputy circuit clerk assignedto her court.

IAs this case presents a question of first impression, there is only a small corpus of case law to

guide our decision. But this is not to say that we are without instruction. The structure of ourjudiciary, as prescribed by the Constitution of the State of West Virginia, provides us with both acompass and a command.

The paucity of authority on the subject in this jurisdiction is related to the fact that the problemwas unlikely to have arisen before the Judicial Reorganization Amendment of 1974 that rewrote ourConstitution's judicial article. Before 1974 there was but one circuit judge in each of West Virginia'sfifty-five counties, and that allowed for little confusion about who was in charge of the court system.W. Va. Const. art. VIII, §§ 10-16 (1880, amended 1974). A circuit clerk ignored the directions ofthe circuit judge at considerable peril. In some counties the legislature had, indeed, created inferiorcourts such as criminal courts, domestic relations courts, or common pleas courts, but the supremejudicial power within the county was held by one elected circuit court judge who was responsiblefor initial appellate review of the decisions of all statutory courts and controlled the judges ofinferior courts through writs of prohibition and mandamus. W. Va. Const. art. VIII, § 12 (1880,amended 1974). See also State v. Mulane, 128 W.Va. 774, 38 S.E.2d 343 (1946) (circuit courts haveexclusive jurisdiction to review judgments of courts of limited jurisdiction).

The ratification of the Judicial Reorganization Amendment in 1974 converted all of theintermediate, statutory courts into circuit courts and thus created today's system where one circuitcourt bench may have as many as seven judges with equal authority. This situation, in turn, madeit necessary to create the position of chief circuit judge in multi-judge counties, and that position isfilled by election among the circuit judges or, in the event that there is a tie vote, throughdesignation by the Supreme Court of Appeals.

The 1974 Judicial Reorganization Amendment did more than establish a hierarchy among thecircuit judges, however. It centralized the administrative power of the entire judicial system andreposed this power in the hands of the Supreme Court of Appeals. The 1974 Judicial ReorganizationAmendment patterned our judicial system after the "unitary" system pioneered by New Jersey. Therulemaking power these plans give to their supreme courts in effect make the Chief Justice theadministrative head of all courts. The Supreme Court's exclusive authority over administration, andprimary responsibility for establishing rules of practice and procedure, secures businesslikemanagement for the courts and promotes simplified and more economical judicial procedures. Giventhe similar structure of the West Virginia and New Jersey courts, the New Jersey judicialadministration experiences are particularly relevant to the problem at hand.

Both the New Jersey and West Virginia courts have faced the problems of insuring that thesenew "unitary" court systems are also effective court systems. Nowhere have these problems beenmore apparent than where the courts have had to exercise their new administrative powers toperform their non-judicial duties such as setting their budget or the appointment, transfer ordismissal of court personnel. In these instances, the courts have routinely vindicated theirconstitutional mandate to exercise the inherent power to administer the court system. State ex rel.Bagley v. Blankenship, 161 W.Va. 630, 246 S.E.2d 99 (1978); (the judiciary has the inherent powerto determine what funds are necessary for its efficient operation). . . . We face a similar problemhere. As our first duty is to insure the fair and effective dispensation of justice, we hold that the

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circuit judges retain control over their clerks. The New Jersey courts have decided cases on this subject and their reasoning is persuasive.

[According to a New Jersey appellate court]:The power of the assignment judge to select and assign as his assistants those who satisfy hisneeds from the coterie of county employees stems from the inherent power of the courts asimplemented by R. 1:33-3(b). And although these assistants may remain county employees forthe purpose of payment of their remuneration, they nevertheless serve under the control anddirection of the assignment judge in the unclassified category and at his pleasure.

Matter of Court Reorganization Plan; etc., 161 N.J. Super. 483, 391 A.2d 1255, 1260 (App. Div.1978) aff'd o.b. 78 N.J. 498, 396 A.2d 1144 (1979). And since this power to regulate the conductof the courts is constitutional, it transcends any legislative directives. [Id.] In the same manner, theWest Virginia Constitution mandates that we and the circuit court judges administer the judicialsystem with dispatch. Although the circuit court clerks are more than our minions, the constitution'smandate for effective justice guides their action as well as ours. They must aid the administrationof justice or face censure.

Furthermore, it is beyond doubt that the role and authority of circuit court clerk must be analyzedwithin the framework of the judicial system. W. Va. Const. art. VIII, § 9 establishes the office ofthe clerk of circuit court. Unlike all other county officials, the office of circuit clerk is created underW. Va. Const. art. VIII, (the judicial article), and not under W. Va. Const. art. IX that creates electedcounty officials with executive and legislative duties, including the prosecuting attorney, sheriff,assessor, county commission, and clerk of the county commission.

IIUnfortunately, although our constitutional mandate is clear, neither legislative enactment nor

specific constitutional provision explicitly address the issue of: "To what extent is a circuit clerkresponsible to the circuit court." The only specific legislation is W. Va. Code 6-3-1(a)(1) [1971]which provides as follows:

The clerk of the supreme court of appeals, or of any circuit, . . . intermediate or county court, orof any tribunal established by law in lieu thereof, may, with the consent of the court, or suchtribunal, duly entered of record, appoint any person or persons his deputy or deputies. ...

Obviously, that statute explicitly contemplates that a judge cannot have incompetent, obstreperous,scandalous, or uncooperative personnel thrust upon her and, by implication, it also means that ifdeputy circuit clerks do not perform in a satisfactory fashion, the judge may have them discharged.Furthermore, although a circuit clerk has duties that are unrelated to the day-to-day operation of thecircuit court Code [6-3-1(a)(1)] requires circuit court approval for the hiring of any personnel whohave the statutory powers of deputy clerks.

III In her deposition Mrs. Rutledge opined as follows: "I don't see the office of circuit clerk as a

handmaiden to the court . . . ." Unfortunately for Mrs. Rutledge W. Va. Const. art. VIII § 1 isexplicit in its placement of all judicial power in the Supreme Court of Appeals and the circuit courts,which means, in effect, that the circuit clerk is an integral part of the circuit court. Both the wordingof W. Va. Const. art. VIII, § 1 and the structure of the entire judicial article (Article VIII) are clearin that they establish a centralized state judiciary. Mrs. Rutledge argues that her position as anindependently elected, constitutional officer clothes her with discretion and authority independentof the will and pleasure of the circuit court. We, however, find no conflict between the electionprocess that selects Mrs. Rutledge from among competing candidates for the job of circuit clerk anda requirement that after being so selected she serve within the hierarchy of judicial authority. . . .[W]e hold today that by the inclusion of the office of circuit clerk in our Constitution's judicialarticle, the framers of that article intended to place the circuit clerk within the administrativehierarchy of the judicial system.

Under W. Va. Const. art. VIII administrative direction of the affairs of all of the circuit courts,

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magistrate courts, and such other courts as the legislature may from time-to-time create is placedin the Supreme Court of Appeals. At the county level, except to the extent that the circuit courts aregiven explicit direction by the Supreme Court of Appeals, the power to control the local affairs ofthe circuit is placed in the circuit judge or the chief circuit judge. It is entirely contrary to thecentralized, hierarchical, and well organized structure of the state judiciary as set forth in W. Va.Const. art. VIII for the circuit clerk to be a loose cannon sliding around on the county's judicial deck.

The clerk of a circuit court of this State is subject to the overall administrative control anddirection of the West Virginia Supreme Court of Appeals through the Chief Justice and theAdministrative Director of the Supreme Court of Appeals and, thereafter, is subject to the day-to-daysupervision of the Chief Circuit Judge of the circuit in which the clerk serves. Furthermore, thecircuit clerk has an obligation of the utmost good faith in her dealings with all judges of a circuitcourt, and any decision to hire, fire, promote, demote, or transfer any and all personnel in the officeof the circuit clerk that have any responsibility whatsoever within the judicial system must be madewith that obligation firmly in mind. A circuit clerk who fails to live up to this obligation may beremoved from office pursuant to W.Va. Code [6-6-7]. When there is conflict among or betweenjudges of a circuit court concerning the proper way for a circuit clerk to dispatch her duties, thejudgment and discretion of the chief circuit judge controls.

Therefore, . . . the rule to show cause in prohibition heretofore issued is discharged and the writof prohibition for which the petitioner prays is denied.

STATE OF WEST VIRGINIA EX REL. LAMBERT v. STEPHENS, 200 W. Va. 802. 490 S.E.2d 891 (1997).

Workman, Chief Justice.

This original habeas corpus proceeding [sought] the immediate custodial release of GordonLambert, President of the County Commission of McDowell County, and Donald L. Hicks, Sheriffof McDowell County (hereinafter collectively referred to as Relators). This Court issued a writ ofhabeas corpus ad subjiciendum, commanding William Bowman, Administrator of the McDowellCounty Jail, to release said Relators pending further order of this Court. We also ordered theHonorable Booker T. Stephens, Chief Judge of the Circuit Court of McDowell County (hereinafterthe Respondent Judge), to file a written response[.] . . . Upon review of the facts of this case, we findit unnecessary to issue a writ of habeas corpus as Relators have purged themselves of any contempt.

I. FACTSThe facts which give rise to this proceeding involve a dispute over a parking area, consisting of

eight parking spaces, situated behind the magistrate court building in the City of Welch, McDowellCounty. On December 18, 1996, the Respondent Judge issued a "General Order," designating theparking area solely for magistrate court personnel use. In this order, the Respondent Judge foundthe parking area was paid for by the McDowell County Commission (hereinafter Commission) outof the magistrate court fund. The Respondent Judge further warned that violators of the order wouldface contempt proceedings.

On January 2, 1997, the Commission met to discuss the magistrate court parking situation andthe Respondent Judge's order. According to the Respondent Judge, who attended this meeting, thecommissioners voted unanimously to authorize Sidney Bell, Prosecuting Attorney of McDowellCounty, to file a petition for a writ of prohibition challenging the parking order. The very next day,however, before a petition could be filed, construction began on a ramp to provide the disabledaccess to the sheriff's office. The sheriff's office was located in a building next to the magistratecourt building, and the ramp was being built adjacent to the magistrate court parking area. TheRespondent Judge was notified of the construction and went to the construction site.

Upon arrival, the Respondent Judge was informed by Sheriff Hicks of his plan to build the ramp.

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After viewing the proposed design and the location of the ramp, the Respondent Judge apparentlyconcluded that use of one of the parking spaces at issue would render the ramp inaccessible.Consequently, the Respondent Judge told Sheriff Hicks to appear before him at 1:30 p.m. that day.After the Respondent Judge left, Robert Estep, a maintenance worker employed by the Commission,arrived at the site with materials needed to build the ramp. After learning of Mr. Estep's arrival atthe site, the Respondent Judge apparently believed that construction of the ramp had not ceased, and,therefore, he expedited a hearing to be held at 11:30 that morning.

Relators, along with Mr. Bell and Mr. Estep, attended the hearing. At the beginning of thehearing the Respondent Judge stated he requested Sheriff Hicks and Mr. Estep to appear before thecourt and "show cause why they should not be held in violation of . . . [the December 18, 1996]order." Mr. Estep testified that he was instructed by Sheriff Hicks and "B. G. Smith," who wasinstructed by President Lambert, to build the ramp up to the edge of the parking lot. Mr. Estepfurther testified that: (1) the ramp would not be built on the parking lot, but he believed access tothe ramp would be blocked if an automobile was parked in the space closest to the ramp; (2) he didnot know much about the contents of the circuit court's prior order and merely was doing what hewas told to do; and (3) the only construction performed thus far was that he knocked down and dugout a cement curb at the edge of the parking lot and he got some materials to build the ramp.

President Lambert testified at the hearing that he authorized the construction of the ramp, but thathe was not at the site when the construction began. During his testimony, he repeatedly stated he didnot know the ramp would interfere with the magistrate court parking and was unaware hisauthorization of the ramp would be viewed as contemptuous of the prior order. Sheriff Hickstestified he believed the ramp would be accessible to a wheelchair even if a vehicle was in theparking space in controversy and he did not believe he was in contempt of the prior order.

At the conclusion of the hearing, the Respondent Judge orally pronounced President Lambert andSheriff Hicks to be in "criminal contempt" and sentenced Relators to thirty days in jail. TheRespondent Judge added, however, that Relators could purge themselves of the contempt byrestoring the disturbed area. Mr. Bell's objections and exceptions to the Respondent Judge's decisionwere noted in the record. . . .

At oral argument before this Court, both parties agreed that the area in controversy was restoredand, consequently, the contempt charges against Relators were purged. Consequently, we find theparties' arguments with respect to the alleged procedural deficiencies in the manner in which theRespondent Judge handled the contempt action are moot. Nevertheless, there are . . . significantissues capable of recurrence which merit discussion by this Court. These issues center around . . .the scope of a court's authority to require reasonable and necessary resources for the performanceof its responsibilities.

II. DISCUSSION. . .

B. A Court's Inherent Authority to Require Necessary ResourcesThe larger underlying issue in this case, and the one capable of repetition, centers on the extent

of a court's inherent authority to require reasonable and necessary resources for the performance ofits responsibilities. In the instant case, this issue focuses on the Respondent Judge's authority to enterthe order designating the parking area solely for the use of magistrate court personnel. Relatorscontend that, pursuant to West Virginia Code § 7-1-3s (1993), the power to control the parking areais vested with the Commission and that the Respondent Judge improperly encroached upon suchpower when he entered the parking order. In relevant part, West Virginia Code § 7-1-3s authorizescounty commissions "to promulgate rules and regulations . . . governing (1) the movement,regulation or control of vehicular or pedestrian traffic on property owned by or leased by such . . .[county commissions], or (2) the regulation or control of vehicular parking on such property." W.Va. Code § 7-1-3s.

In the "General Order," the Respondent Judge recognized the area was rented from the City of

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Welch by the Commission. However, he also found the payments were taken from the magistratecourt fund and stated he was relying upon the circuit court's inherent authority to issue the parkingorder "to eliminate any possibility of misunderstanding or confusion" and "to promote and insurethe fair, effective, expeditious, efficient, and impartial administration of justice . . . ." Upon review,we find the Respondent Judge had the constitutional authority to require these resources and to issuethe order.

1. Specific Constitutional ProvisionsIn 1974, the citizens of this State ratified the Judicial Reorganization Amendment

(Reorganization Amendment), which rewrote the constitutional powers and duties of our judicialbranch. See W. Va. Const. art. VIII. The overriding purpose behind the passage of theReorganization Amendment was to provide a unified court system in West Virginia to facilitate theprompt and efficient administration of justice. State ex rel. Bagley v. Blankenship, 161 W. Va. 630,634, 246 S.E.2d 99, 102 (1978).10 To meet this purpose, the Reorganization Amendment centralizedadministrative authority in this Court. State ex rel. Frazier v. Meadows, 193 W. Va. 20, 25, 454S.E.2d 65, 70 (1994); Syl. Pt. 1, Carter v. Taylor, 180 W. Va. 570, 378 S.E.2d 291 (1989);11

Rutledge v. Workman, 175 W. Va. 375, 379, 332 S.E.2d 831, 835 (1985); accord W. Va. Const. art.VIII, § 3.

The drafters of the Reorganization Amendment implicitly recognized, however, that this Courtcan neither make nor micro-manage every administrative decision that needs to be made at the locallevel. Thus, Article VIII, Section 6 of the West Virginia Constitution provides that, subject tocontrol by this Court, a circuit court judge, or a chief circuit judge in a multi-judge circuit, is giventhe power to control local affairs. See [Rutledge]; Syl. Pt. 2, Carter v. Taylor.13 In addition, thissection also gives the circuit court judge, or the chief judge thereof, the "general supervisory controlover all magistrate courts . . . ." W. Va. Const. art. VIII, § 6.

In State ex rel. Skinner v. Dostert, 166 W. Va. 743, 278 S.E.2d 624 (1981), we addressed whetherthe Jefferson County Circuit Court possessed the authority under Article VIII, Section 6 to enter an"administrative order," sua sponte, specifying the procedural steps for dismissing warrants inmagistrate court. [Id.]15 We recognized that, pursuant to this section a circuit court can exert itscontrol over a magistrate court in two ways. One way is derived from the circuit court's appellateauthority,16 and the other way originates from the circuit court's general supervisory power. [Id.]

After determining the circuit court did not possess the power to issue the order under its appellate

10See also W. Va. Const. art. III, § 17[.]

11Syllabus point one states: "General supervisory control over all intermediate appellate, circuit, and magistrate courtsresides in the Supreme Court of Appeals. W. Va. Const., art. VIII, § 3." Syl. Pt. 1, Carter v. Taylor.

13This syllabus point provides: "Local administrative authority in a multi-judge circuit reposes in the chief judge thereof."Syl. Pt. 2, Carter v. Taylor.

15We found magistrate courts are independent, constitutionally created courts, and the power exercised by those courts"is subject only to the constitution and the law." Syl. Pt. 3, Skinner; see W. Va. Const. art. VIII, § 10 (providing, in part,that "the legislature shall establish in each county a magistrate court or courts . . .").

16"Circuit courts shall have control of all proceedings before magistrate courts by mandamus, prohibition and certiorari.. . . . Circuit courts shall have appellate jurisdiction in all cases, civil and criminal, where an appeal, writ of error orsupersedeas is allowed by law to the judgment or proceedings of any magistrate court . . . ." W. Va. Const. art. VIII, § 6, in part.

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authority,18 we proceeded to discuss the circuit court's general supervisory power. We found thecircuit court's general supervisory power is implicitly defined in Article VIII, Section 10 of the WestVirginia Constitution. [Id.] This section provides, in part:

The division of the business of a magistrate court in any county in which there shall be morethan one magistrate of such court between the magistrates thereof so as to promote and securethe convenient and expeditious transaction of such business shall be determined in such manneror by such method as shall be prescribed by the judge of the circuit court of such county, or thechief judge thereof, if there be more than one judge of such circuit court.

W. Va. Const. art. VIII, § 10. . . . We interpreted this section, along with the relevant languagecontained in Article VIII, Section 6, essentially as "'housekeeping' provisions," designed to facilitatethe efficiency of the magistrate court system. [In] this light, we concluded the circuit court's order,governing the dismissal of warrants in the magistrate courts, did not fall within the realm of its"housekeeping" authority. Therefore, we awarded a writ of prohibition restraining theimplementation of the order. ...

Like Skinner, the order designating the parking area in the present case was issued sua sponte,and it did not grow out of an underlying action. Consequently, it is evident that the order was notissued pursuant to the circuit court's appellate jurisdiction under the first prong of the Skinneranalysis. However, unlike the attempt to assert control over the dismissal of warrants as occurredin Skinner, we find the Respondent Judge's order designating the magistrate court parking area didnot interfere with the judicial function or with the judicial discretion of the magistrate court inanyway.19 By its very nature, we conclude the control of the parking area was an administrativefunction within the second prong of the Skinner analysis. Therefore, the Respondent Judge clearlyhad the power to issue the order pursuant to the circuit court's general administrative authoritycontained in Article VIII, Sections 6 and 10.

In the present case, there is the question of whether a circuit court's inherent authority to controlresources (including parking) can prevail over specific legislation granting such power to countycommissions. See W. Va. Code § 7-1-3s. To answer this question, we must make a morefundamental inquiry about the separation of powers doctrine and the scope of a court's inherentauthority to require sufficient resources for it to perform its functions.

2. Separation of PowersAs part of our constitutional democracy on both the national and state level, we ascribe to the

principle that there shall be three equal branches of government – legislative, executive, and judicial.Article V, Section 1 of the West Virginia Constitution states, in part: "The legislative, executive andjudicial departments shall be separate and distinct, so that neither shall exercise the powers properlybelonging to either of the others . . . ." W. Va. Const. art. V, § 1. . . .

On several occasions, this Court has found it necessary to defend the right of the citizens of thisState to have a free and independent judiciary.20 In State ex rel. Steele v. Kopp, 172 W. Va. 329,

18There was no proceeding in mandamus, prohibition, or certiorari brought warranting entry of the order. . . . "As ageneral rule, any order promulgated sua sponte by a superior court which purports to control the judicial function inproceedings in a lower court is void ab initio." Syl. Pt. 10, Skinner.

19Parking space is certainly not a constitutionally guaranteed resource for public officials and their staff. However, whena public entity possesses a resource, such as space for parking, then obviously the judicial branch of government isentitled to its fair share of such resource.

20See Syl. Pt. 3, Frazier (providing, in part, "the Judiciary, not the executive branch, is vested with the authority to resolveany substantial, genuine, and irreconcilable administrative conflicts regarding court personnel"); Syl. Pt. 3, Rutledge(stating, in part, "[a] circuit judge has complete control of the deputy circuit clerk assigned to her . . ."); Bagley, 161 W.Va. at 658-59, 246 S.E.2d at 114-15 (holding that our constitution prohibits both the legislative and executive branches

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305 S.E.2d 285 (1983), we emphasized that "the role of this Court is vital to the preservation of theconstitutional separation of powers of government where that separation, delicate under normalconditions, is jeopardized by the usurpatory actions of the executive or legislative branches ofgovernment." . . . Not only does our Constitution explicitly vest the judiciary with the control overits own administrative business,21 but it is a fortiori that the judiciary must have such control in orderto maintain its independence.

Other courts which have examined the issue of whether the judiciary may invoke its inherentpower to require necessary resources (such as adequate parking, office space, and other facilities)have found that it falls within the administrative functions of the courts. In one case involving aparking dispute, an Ohio court conducted an ex parte hearing and, thereafter, entered an orderenjoining the police chief and his officers from parking a patrol wagon in such a way that wouldinterfere with the court's parking area. In re Obstruction of Summit County Driveway by AkronPolice Dep't, 108 Ohio App. 338, 340, 161 N.E.2d 452, 454 (1959). . . . In upholding a lower court'sinherent authority to order a county commission to provide security to a courthouse, the SupremeCourt of Colorado reiterated the basic principle that a court holds those "powers reasonably requiredto act as an efficient court." Board of County Comm'rs v. Nineteenth Judicial Dist., 895 P.2d 545,547-48 (Colo. 1995) (internal quotations omitted). The court also quoted one of its prior decisionswhere it eloquently stated that it is the responsibility and duty of the courts to be completelyindependent. Such independence

"is not only axiomatic, it is the genius of our government . . . . It is abhorrent to the principlesof our legal system and to our form of government that courts, being a coordinate department ofgovernment, should be compelled to depend upon the vagaries of an extrinsic will. . . . [It] wouldinterfere with the operation of the courts, impinge upon their power and thwart the effectiveadministration of justice. These principles, concepts, and doctrines are so thoroughly embeddedin our legal system that they have become bone and sinew of our state and national polity."

Id. (quoting Smith v. Miller, 153 Colo. 35, 40-41, 384 P.2d 738, 741 (1963)).Importantly, however, the Colorado court recognized the inherent power of the judiciary is not

unfettered and generally is "limited to matters that are reasonably necessary for [its] . . . properfunctioning . . . ." [Id.] The judiciary must be wary not to overstep its boundaries and violate theseparation of powers doctrine it is trying to protect by encroaching upon legislative and executiveaffairs. It is the prudent use of the judiciary's inherent power which will advance "the public interestof a cooperative and harmonious governmental structure." [Id.]; see also Board of Comm'rs v.Riddle, 493 N.E.2d 461, 463 (Ind. 1986) (finding the issue to be resolved is whether the mandatefor office space "is reasonably necessary for the operation of the court or court related functions, andif so, whether the mandate adversely affects any governmental interest"); Anderson CountyQuarterly Court v. Judges, 579 S.W.2d 875, 879 (Tenn. Ct. App. 1978) (holding "however broadand justifiable the use of inherent powers may be, it is not a license for unwarranted flexing of thejudicial power. The generally recognized standard for applying the inherent powers doctrine requiresits use to be reasonable and necessary."); 21 C.J.S. Courts § 7 at 14 (providing "there is inherentpower in the courts to provide facilities, personnel, and resources reasonably necessary for theperformance of judicial functions").

It is clearly a widely accepted principle in this country that courts have inherent authority torequire resources such as sufficient funds for operating expenses, work space, parking space,supplies, and other material items. In order for a court to invoke use of its inherent power to require

from altering the judicial branch's budget); State ex rel. Brotherton v. Blankenship, 157 W. Va. 100, 207 S.E.2d 421(1973) (finding that the judicial branch has inherent power to set its budget).

21See e.g. W. Va. Const. art. VIII, § § 3, 6, and 10.

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resources, the court must demonstrate that such resources are reasonably necessary for theperformance of its responsibilities in the administration of justice. Although courts must be cautiousnot to reach beyond the power of the judicial branch, it is crucial for the judiciary to be able toinvoke such power as is reasonably necessary to maintain itself as an independent and equal branchof our government. It is the constitutional obligation of the judiciary to protect its own properconstitutional authority by upholding the independence of the judiciary. Of course, whenever aconflict arises between the judiciary and another branch of government, the best first approachordinarily would be to reach an amicable resolution of the problem without resorting to court ordersor other legal actions. However, a court is not restricted to negotiation if an amicable solution cannotbe found. A court may use the legal resources available to it to defend those interests it isconstitutionally bound to protect, including, but not limited to, ex parte orders in necessarycircumstances in administrative matters within the court's inherent authority.

Having enunciated these broad principles, we turn to the facts at hand. Although . . . it appearsthat the conflict over the contempt is now moot, Relators do raise in their petition for habeas corpusthe substantive issues of the court's authority to enter its "General Order." Thus, in order to resolvethis matter, we address it specifically.

In this case, the Respondent Judge found the parking area was being paid for out of themagistrate court fund. The magistrate court fund exists pursuant to West Virginia Code § 50-3-4(1994) and consists of "all costs collected in magistrate courts in a civil or criminal proceeding . .. ." W. Va. Code § 50-3-4. The statute further provides "[a] county may, in accordance with thesupervisory rules of the supreme court of appeals, appropriate and spend from such fund such sumsas shall be necessary to defray the expenses of providing services to magistrate courts." [Id.] UnderRule 8(f) of the Administrative Rules for Magistrate Courts, we permit a county to use magistratecourt funds to pay for "adequate parking spaces for the public and the staff of the magistrate court"when such parking "for the magistrate court staff and the public is otherwise unavailable . . . ." ...

In their memorandum of law, Relators contend the Commission has not limited, restricted, orprohibited the magistrate court staff's parking in any way. Assuming this statement is true, it appearsthat there is no actual present conflict between Rule 8 and West Virginia Code § 7-1-3s. Certainly,if the Commission desired to do so, it could promulgate rules and regulations under West VirginiaCode § 7-1-3s consistent with this Court's rule regarding the use of magistrate court funds. On theother hand, if a direct conflict would arise, we have said that the administrative rules adopted by thisCourt pursuant to Article VIII, Section 8 "have the force and effect of statutory law and operate tosupersede any law that is in conflict with them." Syl. Pt. 1, Stern Bros., Inc. v. McClure, 160 W. Va.567, 236 S.E.2d 222 (1977); see also [Frazier] (emphasizing that a statute is "superseded only ifthere is a direct conflict" with a rule). As the Commission only may use such magistrate court funds"as shall be necessary to defray the expenses of providing services to magistrate courts," W. Va.Code § 50-3-4, we conclude by the Commission's expenditure of the funds that the RespondentJudge committed no error in entering the order designating the parking area. Even more importantly,this dispute seems to fall clearly within that realm of inherent administrative authority whichsupports a court in requiring necessary resources for the performance of its duties.28

III. CONCLUSIONFor the foregoing reasons, we find the circuit court did not err in designating the parking space

28We caution, however, that today's opinion should not be construed in a manner that would embolden judicial officersto embark on actions beyond the parameters of what is reasonable and necessary. The West Virginia Judicial Branchcontinues to exercise its independence and autonomy without encroachment at least in part because it has historicallybeen immensely frugal and eminently judicious in its requirements and demands. We also emphasize that it is the spiritof cooperation and mutual respect between our three co-equal branches of government that has allowed our democracyto function as well as it has. To our partners in the Executive and Legislative branches, we must express our respect andappreciation for their role in this cooperative approach.

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in the first instance. We also find the contempt charges against Relators were purged by theirrestoration of the parking area in accord with the circuit court's contempt order. Consequently,Relators' request for habeas corpus relief is moot, and we direct the circuit court, if it has not alreadydone so, to enter an order in the underlying case relieving Relators from the contempt order. . . .

D. Family Courts

Read Article VIII, § 16

[Parts D and E and the Introduction to Part F are extracted from ROBERT M. BASTRESS, JR., THEWEST VIRGINIA STATE CONSTITUTION 255-50 and 262-63 (2nd ed., Oxford University Press, 2016).]

A 2000 amendment added § 16 to provide a system of family courts to specialize in domesticrelations matters and to alleviate the case load demands on the general jurisdiction circuit courts. Family law issues are the most common civil cases and, of course, touch upon matters of greatimportance to ordinary citizens. A previous legislative attempt to create family law judges withauthority to make final decisions had been invalidated as usurping the powers of the circuit courtsand as inconsistent with Article VIII, §§ 1, 5, and 6. Starcher v. Crabtree (1986). The legislaturethen went to creating family law masters, who merely made recommendations to the circuit judges. Section 16 now vests the family law judges with the same powers to decide cases within theirjurisdiction as the circuit judges had previously exercised. Section 16 charges the legislature with the responsibility for defining the family courts’jurisdiction, which it has done in West Virginia Code § 51-2A-2. Family courts are courts of limitedjurisdiction and require specific statutory authority to hear a case, even if it touches on matters offamily relations. Lindsie D.L. v. Richard W.S. (2003) (family court lacked jurisdiction to decidesibling visitation case). The family judges are elected by the voters to terms of eight years or less,as determined by the legislature. West Virginia Code § 51-2A-5(b) now sets the term at eight years. The judges are required to have at least five years of West Virginia law practice experience and mustlive in the circuit they serve. The legislature sets the number of family court judges and arrangestheir circuits. West Virginia Code § 51-2A-3. The family law circuits do not necessarily coincidewith the judicial circuits. Id. The legislature has the discretion to stagger the judges’ terms. The final paragraph makes clear that the family courts are part of the hierarchical judicial systemestablished by the 1974 Judicial Reorganization Amendment, subject to Supreme Court supervision,and are governed by the general provisions regulating the judiciary set forth in Article VII, §§ 7 and8.

E. Magistrate and Municipal Courts

Read Article VIII, § 10-11.

Section 10 establishes a system of magistrate courts, which are courts of limited jurisdiction forhearing small civil claims and misdemeanor criminal cases and for issuing warrants.1 The sectionwas entirely new with the 1974 amendment. Previously, the judicial article had divided counties intodistricts of equal population, with each district electing one justice of the peace for each 1,200

1 See generally W. Va. Code §§ 50-1-1 et seq.; Robert Batey and Diana L. Fuller, StreamliningCriminal Procedure in Magistrate Court, 79 WEST VIRGINIA LAW REVIEW 339 (1977); Note,Judicial Reform in West Virginia: The Magistrate Court System,” 79 WEST VIRGINIA LAW REVIEW304 (1977).

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people. The justices had county wide jurisdiction and heard roughly the same kinds of cases asmagistrates now do. The system had many critics and had long been the target of reform. A 1940effort2 to pass a constitutional amendment abolishing the justice of peace system and creating a“summary court” in each county failed, however, to gain majority support among voters.

The first paragraph requires the legislature to establish a magistrate court in each county and toprescribe a right of appeal from its judgments. See W. Va. Code §§ 50-5-12, -13. The legislature hasthe discretion to designate such courts as courts of record.

In its second paragraph, section 10 further directs the legislature to set the qualifications ofmagistrates, the number of magistrates per county, the number of officers to serve each magistratecourt, the method for selecting those officers, and the procedure for filling any magistrate courtvacancies. See W. Va. Code §§ 50-1-1 to -13. The paragraph also gives the legislature thediscretion to make the election of magistrates either partisan or nonpartisan. Beginning in 2016,their elections will be on a nonpartisan basis. The first proviso ensured that those justices of thepeace who were in office for the year preceding the adoption of the 1974 amendment could neverbe excluded from eligibility to be a magistrate by legislatively set qualifications. The second provisois unique; it prohibits the legislature and the court system from requiring that magistrates be lawyers.Finally, the second paragraph sets magisterial terms at four years and requires each magistrate tobe a resident of the county in which he or she was elected.

The third and fourth paragraphs address the jurisdiction of magistrate courts. The jurisdiction ofeach magistrate court extends throughout the entirety of its county. The legislature has theresponsibility for regulating the venue of magistrate courts and setting the times and places for themto be in session. The limits of magistrate courts’ subject matter jurisdiction appear in the fourthparagraph. Their authority to decide criminal matters shall be set by the legislature, but may notextend to felonies. Section 10 specifically exempts magistrate courts from the requirement in ArticleIII, section 4 that no person may be held to answer for a crime except upon indictment orpresentment. Instead, section 10 permits magistrate court criminal actions to be initiated byinformation (a charge issued by a prosecutor) or an arrest warrant.

The civil jurisdiction of magistrate courts is restricted to cases at law—actions that do not seekany equitable relief—in which the amount in controversy is less than $1,500, but the legislature maymake exceptions and may raise the jurisdictional maximum. See W. Va. Code § 50-2-1 (raising themaximum to $5,000 and excluding magistrates from deciding certain claims). In no event, accordingto section 10, may a magistrate court adjudicate title to land.

The section’s three concluding paragraphs offer an important miscellany. In keeping with thegeneral structure for the judicial system established by the 1974 amendment, the fifth paragraphprovides for the circuit judge, or the chief judge in multiple-judge circuits, to direct the manner fordividing the work among a county’s magistrates. See also Art. VIII, sec. 8. This power, however,extends only to promoting the “convenient and expeditious transaction” of magistrate court business.It contemplates a purely “housekeeping” function and does not “confer upon the circuit court thepower to interfere with the judicial function of the magistrate or to control judicial discretion in anyparticular case before the magistrate.” State ex rel. Skinner v. Dostert (1981). Circuit court controlover the substance of magistrates’ decision-making may be exercised only in the traditional case-by-case forums of appeal, certiorari, mandamus, and prohibition. Id.

Magistrate court juries, says the sixth paragraph, shall consist of six persons. This relieves suchcourts of the requirement in Article III, section 14 that trials of crimes and misdemeanors shall beby a jury of twelve persons.

Finally, the concluding paragraph prohibits magistrates and the officers of their courts from beingpaid or receiving any payments for their services other than their statutory salaries. The provision

2 See Leo Carlin, “The Judiciary Amendment,” West Virginia Law Quarterly 45 (1939): 220.

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would apply not only to criminal acts like bribery and influence peddling, but also to more subtlepractices that had previously existed in which justices of the peace were paid, in part, by the numberof cases they decided. That system created a competition among magistrates for litigants and led toless than judicious results. See State ex rel. Shrewsbury v. Poteet (1974).

Unlike justices and judges, however, magistrates who are attorneys may practice law, except tothe extent prohibited by the legislature. See Art. VIII, sec. 7; W.Va. Code § 50-1-12. Presumably,then, magistrates can pursue other occupations not in conflict with their offices.

Section 11 authorizes the establishment of municipal courts to decide cases based on the lawcreated by city ordinances. The three earlier judicial articles had also empowered the legislature to“establish courts of limited jurisdiction within any incorporated town or city” (1863 Const. Art. VI,sec. 17; 1872 Const. Art. VIII, sec. 22 (1872); 1872 Const. Art. VIII, sec. 19 (1880 Am.)). Thissection differs from those earlier provisions primarily in the jurisdictional limits it imposes on citycourts and its inclusion of the last sentence.

The section leaves the establishment of municipal courts to the discretion of the legislature. Thatdiscretion has been exercised, and cities may either use their mayor as a judicial officer, W. Va.Code § 8-10-1, or create and maintain a police or municipal court, with its judges to be selected asprovided by the individual cities, W. Va. Code § 8-10-2. According to section 11, the legislature hasthe authority to direct the method of selection for city judges. The section limits the jurisdiction ofsuch courts, however, to the enforcement of municipal ordinances. The legislature has theresponsibility for specifying litigants’ appeal rights from the municipal courts.

City court defendants threatened with jail time for violating an ordinance have a right underArticle III, section 14 to demand a trial by a jury of twelve persons, regardless of whether they havea right to de novo review and a jury trial in circuit court. Champ v. McGhee (1980). In addition, acourt may not circumvent a defendant’s right to a jury trial by dismissing the charges and directingthey be refiled under state law in magistrate court, where Article VIII, section 10 ensures a separateright to jury trial. Scott v. McGhee (1984). Although city law enforcement officers can initiallychoose where to bring charges and may opt for state charges in magistrate court, if they choose toprosecute in city court, its judge may not dismiss the charges and redirect them to magistrate courtsolely because the defendant exercised his or her right to a jury trial—at least where (as wouldnormally be the case) the state charges carry a potentially longer sentence. Scott. In addition,municipal court criminal defendants have a right to be represented by counsel and, if indigent, havea right to counsel appointed by the county’s circuit court. Bullett v. Staggs (1978); see W. Va. Code§ 51-11-5. City court defendants who exercise their right to appeal to circuit court cannot receivea heavier sentence in the higher court than was imposed initially by the city court. State v. Bonham(1984). To hold otherwise would penalize the defendant’s right to appeal.

The West Virginia Supreme Court of Appeals has upheld against constitutional attack thevesting, authorized by section 8-10-1 of the West Virginia Code, of the municipality’s judicialpower in a mayor. Separation of powers principles do not apply at the lower levels of government,where some overlapping of officials’ functions is needed to avoid imposing costly and unnecessaryobligations on local governments. Nor is fairness compromised by such a system if a tiny fractionof municipal revenues is generated by the mayor’s court. Hubby v. Carpenter (1986).

On the other hand, the court has held that no city official other than the city’s judicialofficer—that is, its mayor or municipal court judge, whichever is applicable—can issue warrants.Accordingly, the court invalidated a city ordinance that had authorized warrants for all city offensesto be issued by the “municipal judge, mayor, city clerk, municipal court clerk, chief of police, or inthe absence of the chief of police, the captains of police and lieutenants of police.” Such a systemoffended the constitutional requirement that warrants be issued only by a neutral and detachedofficer, and law enforcement officers charged with ferreting out crimes did not qualify. In addition,the court observed that section 11 authorizes the establishment of municipal courts and section 12empowers the legislature to name the officials who can issue and execute writs, warrants, and

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process. Pursuant to those sections, the legislature enacted section 8-10-1, which gave that powerto mayors, and section 8-10-2, which accorded municipal court judges, where established, the samejudicial powers that a mayor has under section 8-10-1. Thus, only the judicial officers authorizedby those two sections can issue warrants. Although the legislature, under section 12, may have theconstitutional discretion to extend the power to neutral and detached clerks, it has not done so. Stateex rel Hill v. Smith (1983).

The last sentence of section 11 prohibits municipal court judges and officers from being paid orreceiving payment for their official work by any means other than their prescribed salary. This isthe same restriction as section 10 applies to magistrates and their subordinate officers. It aims toavoid possible conflicts and compromising justice. See Tumey v. Ohio (1927); State ex rel.Shrewsbury v. Poteet (1974).

F. General Provisions Relatingto Judicial Officers

Read Article VIII, § 7 & 8

This section’s provisions relate to the qualifications for, compensation of, and limitations on thestate’s judicial officers. The section’s development can be traced through each version of the judicialarticle (see W. Va. Const. Art. VIII, sec. 16 (1880 Am.); Art. VIII, sec. 17 (1872); Art. VI, secs.11–12 (1863)). The bar against judges holding other offices also appeared in the Virginiaconstitutions of 1830 and 1851. The ban on judges practicing law first appeared in the state in the1872 article. The 1974 Amendment made several changes: It added the requirement that justices andjudges be admitted to practice for a minimum number of years, deleted a provision that fixed judges’salaries and assigned that task to the legislature, inserted the prohibition on judges becomingcandidates for nonjudicial elective offices, and added the last paragraph, which establishes the methodfor filling vacancies.

The first paragraph sets the qualifications. All judicial officers must be residents of the state.Justices must have been admitted to practice law for at least ten years prior to their election andcircuit judges for five years. According to the supreme court, those requirements refer to admissionto the bar in West Virginia for the stated number of years and not to practice in any state. State exrel. Haught v. Donnahoe (1984).

The second paragraph charges the legislature with the responsibility of setting judges’ salariesand specifically provides that the salaries may be increased, but not decreased, during judges’ termsof office, thus exempting them from Article VI, section 38’s bar on in-term increases. The inclusionof this paragraph in the 1974 amendment reflected the realization that neither constitutionally fixingsalaries nor locking them in for periods of eight and twelve years makes sense in light of moderneconomic conditions.

The third paragraph dealt with the 1974 amendment’s impact on judges in office at its passageand particularly on judges of the limited jurisdiction courts that the amendment abolished. Theparagraph has no remaining significance. For examples of its application, see State ex rel. Dunbarv. Stone (1976) and State ex rel. Casey v. Pauley (1974).

The fourth paragraph imposes certain limitations on judicial officers. First, they may not holdany other public office under any government. Although the West Virginia court has not interpretedthis particular restriction, it probably would not preclude judges from serving in positions that didnot hold some sovereign power and did not create the potential for conflict and interference with

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judicial duties. See Thomas v. Wysong (1943); commentary to Art. VII, sec. 4.3 Thus, serving on somecommissions and boards or teaching as an adjunct at a state college would not violate section 7.Thomas; 56 Op. atty. gen. 46 (1974). The 1974 amendment added that judges were also to be barredfrom continuing in office after they become candidates for any nonjudicial public offices. Anyonewho violates these provisions of section 7, which are designed to prevent both obstructive conflictsand judicial entanglements with politics, vacates his or her office. The Supreme Court relied onthose purposes to conclude that an incumbent justice could not run for another seat on the Courtwhen his own term extended past the election. State ex rel. Carenbauer v. Hechler (2000)(immediately below). The goal was to “remove politics and its attendant imbroglios from thejudicial process,” and allowing justices to run (perhaps even repeatedly) for another seat on the samecourt to extend their terms was inconsistent with that goal.4 Allowing that would also defeat thepurposes of Article VIII, § 2's provision for the lengthy term of twelve years for justices to enhancetheir judicial independence and minimize political influences. Section 7's fourth paragraph alsoprohibits justices and judges from practicing law while in office, although it leaves to the legislaturethe discretion to decide whether or to what extent magistrates may maintain a law practice. WestVirginia Judicial Inquiry Commn. v. Allamong (1979); see W. Va. Code § 50-1-12.

Section 7’s final paragraph provides the mechanism for filling vacant judgeships. If the vacancyoccurs with less than two years (expandable to three years by the legislature) remaining on thejudge’s term, the governor appoints a successor to complete the unexpired term. If the termremainder is longer than two years (or up to three years, if the legislature so provides), the governordirects that an election be held to elect a person to complete the unexpired term and appoints anindividual to serve until a successor is elected and qualified. See W. Va. Code § 3-10-3; State ex rel.Robb v. Caperton (1994). This section supersedes the more general provisions for filling vacanciesin Article IV, sections 7–8.

Section 8 confers rule-making powers on the West Virginia Supreme Court of Appeals to governthe conduct of judicial officers and sets forth the procedures for disciplining and removing thosewho violate the conduct codes. Most of the section was new with the 1974 amendment. Each of theprior versions provided only for legislative removal of judges and did not vest any rule-makingauthority in the supreme court. Under those predecessors, the legislature regulated courts and judges.Transferring that power to the supreme court, however, is fully consistent with the general schemeof the 1974 judicial article, which created a centrally controlled, hierarchical judicial system.

Section 8’s first paragraph establishes the supreme court’s rule-making authority and directs thatit be used to prescribe standards of conduct for justices, judges, and magistrates and penalties forviolations of those standards. The paragraph also empowers the court to impose disciplinarymeasures, including temporary suspensions and multiple sanctions. In re Toler, 218 W. Va 653, 625S.E. 2d 731 (2005). That power may be exercised to suspend judges with or without pay. In reGrubb (1992). By virtue of the first paragraph, the court may retire any judge who is eligible forretirement and who is no longer able to fulfill the obligations of the office.

The second paragraph describes the minimum in procedures that must be provided to judicialofficers threatened with disciplinary sanctions or involuntary retirement. A judge in such a positionhas the right to a hearing before the supreme court and to notice of the hearing and the allegationsat least twenty days prior to the hearing date. Supreme court justices may not be suspended or retiredunless the remaining members of the court unanimously concur in the decision. The final sentenceof the second paragraph makes clear that regulations issued by the court pursuant to the authorityof this section control over, and render void, all other laws to the extent that they conflict with

3

Forest Jack Bowman, “A Judicial Dilemma: Real or Imagined,” West Virginia Law Review 83 (1980): 29.

4 208 W.Va. 584, 589, 542 S.E.2d 405, 410 (2000).

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(1988).The fourth paragraph provides for temporary assignments of retired justices and judges by the

chief justice to serve in any of the state’s courts. The last paragraph addresses removal of judicialofficers; justices and judges may be permanently removed from office only by impeachment andconviction under Article IV, section 9, but magistrates may be removed in the same manner as isprovided for other county officials. See W. Va. Code § 6-6-7.

STATE ex rel. CARENBAUER v. HECHLER,208 W. Va. 584, 542 S.E.2d 405 (2000).

ACTING CHIEF JUSTICE SCOTT delivered the Opinion of the Court. CHIEF JUSTICEMAYNARD, JUSTICE DAVIS, and JUSTICE McGRAW, deeming themselves disqualified, didnot participate in the decision in this case. JUDGE FRANK E. JOLLIFFE, JUDGE FRED L. FOX,II, and JUDGE THOMAS H. KEADLE sitting by temporary assignment. JUSTICE STARCHERdissents and reserves the right to file a dissenting Opinion. JUDGE JOLLIFFE concurs and reservesthe right to file a concurring Opinion.

Scott, Justice:

Relator George E. Carenbauer seeks a writ of mandamus to have Respondent, the HonorableWarren R. McGraw, declared ineligible as a candidate for election to a separate twelve-year termon this Court.2 As grounds for the extraordinary relief sought, Relator asserts that Justice McGrawfails to qualify as an eligible candidate for office due to his status as an incumbent currentlyfulfilling an unexpired term to which he was elected. Additionally, Relator contends that JusticeMcGraw's actions first, as the author of a recent opinion declaring Speaker of the House ofDelegates Robert S. Kiss ineligible for appointment to this Court under the emoluments clause ofthis state's constitution, and now, in seeking the position which Speaker Kiss was denied,4 have bothundermined the integrity of this judicial institution and cast upon it a pernicious cloak of aspersion.Following an exhaustive examination of constitutional principles combined with an equallythorough review of judicial decisions concerning the penumbral issues presented by the petition, weconclude that while the constitution does not expressly proscribe an incumbent justice whose termhas yet to be fulfilled from seeking election to a separate seat on this Court, the intent underlyingthe enactment of article VIII of our state constitution, which sets forth the requirements for selectionto this Court, as well as the entire structure of the judicial branch of government; the social compactof this state's citizenry as expressed through the adoption of both the Constitution and the JudicialReorganization Act of 1974; and the state's compelling interest in maintaining the integrity of thejudiciary, as well as its equally-compelling interest in securing an independent judiciary removedfrom the entanglements of politics, all combine to require this Court to conclude that JusticeMcGraw cannot seek to enhance his term-length through these means. Accordingly, we grant thewrit of mandamus as moulded.

I. Factual Background The precipitating fact that spawned this petition was the filing of a certificate of candidacy by

2Justice McGraw is currently serving the remainder of a term on the West Virginia Supreme Court of Appeals to whichhe was elected as a result of the resignation of Justice Thomas E. McHugh in 1998. The term to which Justice McGrawhas been elected ends on December 31, 2004.

4While we fully appreciate the gravity of the ethical concerns Relator has raised that arise from Justice McGraw'sinvolvement in the proceedings which resulted in the nullification of Speaker Kiss' appointment to this body, we do notrely on such grounds to resolve this matter.

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Justice McGraw via the U.S. Postal system on January 29, 2000. . . . Were it not for the fact thatJustice McGraw is currently filling the remainder of an unexpired term, which runs until December31, 2004, the filing would not have been momentous. Due to the unprecedented nature of this filing,the press immediately began publishing commentary7 on the issue of whether a supreme courtjustice could seek election to another term of court while still occupying an unexpired term on thatsame body. When Justice McGraw permitted the deadline for withdrawing his candidacy to pass,Relator avers that he was prompted to file a request for extraordinary relief by virtue of JusticeMcGraw's failure to withdraw his name from the list of Democratic candidates seeking election tothis Court. This Court granted the rule to show cause for the purpose of determining whether JusticeMcGraw's candidacy is in violation of the West Virginia Constitution or the general laws of thisstate.... III. Discussion

As an initial matter, we feel constrained to observe that not once in the 137 years since this state'sformation has any individual adopted a course of action such as that pursued here by JusticeMcGraw. No one has previously attempted to "switch seats" while already occupying a position onthis Court, the highest tribunal in this state. The absence of precedent for this audacious conduct isnot limited to this state's jurisprudence, but similarly is lacking throughout the other fifty states, saveone. Were it not for the thwarted aspirations of one other judge, we would be completely bereft ofauthority against which to examine Justice McGraw's novel approach to term extension.

We are not unmindful of the fact that a differing viewpoint exists with regard to the authority ofthis Court to prohibit Justice McGraw from seeking another term on this judicial body based on thefact that our state constitution does not expressly proscribe such a candidacy. In anticipation of suchreproach, we respond that this Court is obligated by its role as the arbiter of constitutional issues,as well as its duty to uphold the confidence reposed in the judiciary by this state's citizenry, toresolve the issue of Justice McGraw's candidacy. Concomitant to the sustained confidence of thepublic in the judiciary is the correlative responsibility that integrity must be the cynosure of alljudicial endeavors, both actual and perceived. So crucial is the state's interest in maintaining theintegrity of its judicial system that regulations or restrictions which temporally affect anofficeholder's access to the ballot have been found to withstand constitutional challenge on thisground alone. Clements v. Fashing, 457 U.S. 957 (1982). This recognized state interest in upholdingthe integrity of the judicial system, and the inherent and express power of this Court to control thepolitical activities of all judicial officers, thus serve as both the predicate core of our decision andas the authority for the ruling itself.

A. Constitutional and Statutory Provisions We look first to the governing constitutional language found in article VIII, section seven to

determine whether the legislative framers anticipated and addressed the situation with which we areconfronted. The only language that addresses the issue of judicial candidacy states as follows:

No justice, judge or magistrate shall hold any other office, or accept any appointment or publictrust, under this or any other government; nor shall he become a candidate for any elective publicoffice or nomination thereto, except a judicial office; and the violation of any of these provisionsshall vacate his judicial office.

While some advocates might contend, at first glance, that the constitutional language does in factauthorize the candidacies of incumbent judges, upon scrutiny it becomes clear that this proviso wasnot adopted with the concerns in mind presented by Justice McGraw's filing. It does not pertain tothe question of his right to run for this particular judicial office as a term-enhancement maneuver.

The language of article VIII, section seven, which permits a justice to become a candidate for

7We reference the aspect of press coverage not as support for the decision reached in this case, but as commentary onthe state of calumny that has beset this institution since Justice McGraw filed his pre-candidacy statement.

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judicial office without vacating his/her judicial seat is aimed at two interrelated concerns: preservingthe separation of powers amongst the three branches of government and preventing judicialentanglements with politics. The insertion of this constitutional language through the JudicialReorganization Amendment of 1974 is directed at "barring [judges] from continuing in office afterthey become candidates for any nonjudicial public offices." Robert M. Bastress, The West VirginiaConstitution at p.213 (1995). These provisions were "designed to prevent both obstructive conflictsand judicial entanglements with politics." Id. The Montana Supreme Court, in discussing thepurpose of its constitutional language on this subject, stated: "The constitutional prohibition againstjudges seeking nonjudicial offices while still holding judicial office is but part of a generalconstitutional scheme declaring directly or indirectly the rights of office holders in all branches ofgovernment to seek other office while still holding office." Committee for an Effective Judiciary v.State, 209 Mont. 105, 679 P.2d 1223, 1228 (Mont. 1984). In upholding the constitutional languagethat permits a judge not to forfeit office if he/she files for a judicial position, the Montana SupremeCourt opined:

The [Montana constitutional] delegates perceived a public benefit in opening up the judicialelection process to judges who desired to move from lower courts to the district court and fromdistrict court to the supreme court, or from a justice on the supreme court to a chief justice onthe supreme court. . . . To say that a judge forfeits his office if he files for a non-judicial officeis but another way of saying that a sitting judge can file for other judicial office withoutforfeiting his office.

679 P.2d at 1228-1229 (emphasis supplied). Undergirding the constitutional prohibition against seeking nonjudicial elective office is the

correlative objective of both removing and insulating judges from the political realm. While thereasons for separating the judiciary from politics are many and varied, there can be no question thatthe goal of removing politics and its attendant imbroglios from the judicial process is necessary tothe proper functioning of our judicial system. See, e.g., Philyaw v. Gatson, 195 W. Va. 474, 478,466 S.E.2d 133, 137 (1995) (discussing consequences of judge defeated in bid for nonjudicial officereturning to bench post-election)[.] . . . It is not surprising then that the Code of Judicial Conductincludes a complementary restriction on "inappropriate political activity" which requires judges to"resign from judicial office upon becoming a candidate for a non-judicial office." W.Va. Code ofJudicial Conduct, Canon 5A(2). In discussing the Washington corollary to Canon 5, often referredto as a "resign-to-run" requirement, the Washington Supreme Court stated that this canon "seeks toprevent embroiling the court in political controversy and allowing a judge to trade on the prestigeand dignity of the judicial office." In re Disciplinary Proceeding Against Niemi, 117 Wash.2d 817,820 P.2d 41, 46 (Wash. 1991)[.] . . .

Having thus concluded that the language of article VIII, section seven is directed at forcingjudges to vacate their office if they intend to run for nonjudicial office and to similarly uphold theseparation of powers by proscribing judicial officers from becoming candidates for either of the tworemaining branches of government while still holding office, we next address whether the languageat issue authorizes an incumbent justice to seek a separate seat on the court before his term hasexpired. The answer to this query cannot be reached by simply concluding that, because the officesought by Justice McGraw is a judicial office, he is permitted by the terms of article VIII, sectionseven to seek judicial office while still holding and fulfilling an unexpired judicial seat. While thedissent employs contorted logic in rewriting the language of article VIII, section seven to state inpositive terms that "a sitting justice may 'become a candidate for any elective . . . judicial office,'"13

such reformulation is shallow and jurisprudentially indefensible. It neither withstands constitutionalanalysis nor does it answer the query before the Court. The words of Justice Story still ring true:

13This language is included by the dissent in the order issued by this Court on March 23, 2000.

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"How easily men satisfy themselves that the Constitution is exactly what they wish it to be."Alpheus T. Mason & Donald G. Stephenson, Jr., American Constitutional Law 38 (10th ed. 1993).If the course of action undertaken by Justice McGraw was not contemplated by either the framersof our state constitution or the drafters of the Judicial Reorganization Act of 1974, and we seriouslydoubt that it was,14 then we cannot summarily conclude that such action is sanctioned under thisconstitutional provision. It is more reasonable to find that this behavior is simply outside the expressterms of our social compact. As we recognized in Randolph County Board of Education v. Adams,196 W. Va. 9, 467 S.E.2d 150 (1995), "when the Constitution is silent on a particular issue, thesolution cannot be found in a methodology that requires us to assume or divine the framers' intenton an issue which most likely was never considered." [Id.] . . .

B. Analogous Precedent Despite multitudinous research efforts, only one factually similar decision was unearthed that

involved a judicial officer who sought to enhance his term length while still fulfilling a term towhich he had been elected. In Hurowitz v. Board of Elections, 53 N.Y.2d 531, 426 N.E.2d 746, 443N.Y.S.2d 54 (N.Y. 1981), a sitting civil court judge, who had served less than half of the ten-yearterm to which he had been elected, filed as a candidate for another ten-year seat on the same judicialbody. Like Justice McGraw, Judge Hurowitz asserted his right to seek a separate judicial seat on thesame court based on the language of New York's corollary to article VIII, section 7 of our stateconstitution. Citing the language of article VI, section 20 of the New York Constitution, whichprovided that "a Judge may not 'be eligible to be a candidate for any public office other than judicialoffice . . . unless he resigns his judicial office,'" Judge Hurowitz argued that the quoted constitutionallanguage "not only permits members of the judiciary to retain their positions while they pursuevacancies on other courts, but also sanctions sitting Judges whose terms have not yet expired to becandidates for identical positions on the same court." 426 N.E.2d at 747. In rejecting JudgeHurowitz's postulate, the New York court examined the entirety of the language of article VI inwhich the subject constitutional language was located to determine the underlying general intent ofthe article.

"When the whole sixth (or judiciary) article of the Constitution is considered, certain purposesare clearly indicated. It was proposed to provide for the State a general and complete andcontinuous judicial system, and to create, or recognize and continue, all the judicial officersneeded therefor . . . . It was designed that the general and * * * the exclusive mode of fillingthese offices * * * should be by election by the people, and not by appointment."

426 N.E.2d at 747 (quoting People ex rel. Jackson v. Potter, 47 N.Y. 375, 379-80 (N.Y. Sup. Ct.1872)). In light of the historical underpinnings of the judiciary article, the court in Hurowitzconcluded that

article VI was designed to assure a structured judiciary elected on a regular basis withoutfragmentation of terms. To accept this candidate's interpretation of section 20 would defeat theover-all purposes of article VI. Such activities could fragment terms and create interim vacancieson a regular basis, thereby infringing upon the people's right to a "complete and continuousjudicial system".

426 N.E.2d at 748 (quoting Potter, 47 N.Y. at 379). Besides its concerns over fragmentation and the consequent disruption to the judicial process,

the court in Hurowitz considered the logical consequences of the judge's candidacy on the selectionof judges:

The nature of the Judge's candidacy could have the effect of aborting the election process. By

14We have found no authority, and similarly been cited to none by the parties hereto, that demonstrates any historicalcontemplation was given to the issue of whether an incumbent on this Court whose term has not expired could seekelection to another seat on this Court.

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seeking another position on the same court where he currently sits, he not only allows himselfmultiple chances to be re-elected, but also assures that when he is elected to the other positionon the same court, a vacancy will occur. Such a vacancy creates an additional occasion forpolitical involvement. Moreover, should this type of conduct become the norm, it would bepossible that all positions would be appointive upon the resignations and shiftings of the otherJudges; only at the next general election would the people be given a chance to vote, the effectof which may well be to merely approve the appointment. Although we do not find that this iscurrently the practice, the likelihood of such a result portends abuse of the elective system. Evenviewed in its most favorable light, this conduct has the potential for "mischief" which this courtcannot condone. . . .The potential for public backlash to this type of candidacy was fully appreciated by the court in

Hurowitz: "Not without significance in this connection is the risk of the appearance of improprietythat may be perceived by the public in a Judge's injection of himself into the political process forthe sole purpose of extending his tenure." 426 N.E.2d at 748 (emphasis supplied). Such injectioninto the political process, according to the court in Hurowitz, was contrary to the intent of theconstitutional framers to "minimize the involvement of the judiciary in the political process and thepossible influences such exposure might bring with it." Id. With this sentiment, we heartily agree.

C. Fundamental Right to Candidacy Despite the compelling nature of the rationale employed by the Hurowitz court in forcing Judge

Hurowitz to withdraw his name from the ballot, we must proceed to examine whether JusticeMcGraw has a fundamental right to candidacy which prevents this Court from similarly foreclosinghis candidacy. Beginning with this Court's decision in State ex rel. Brewer v. Wilson, 151 W. Va.113, 150 S.E.2d 592 (1966), overruled on other grounds, Marra v. Zink, 163 W. Va. 400, 256 S.E.2d581 (1979), we have recognized that the "'right to become a candidate for election to public officeis a valuable and fundamental right.'" Id. at 121, 150 S.E.2d at 597 (quoting 29 C.J.S. Elections §130 at 377)[.] . . . In syllabus point two of State ex rel. Billings v. City of Point Pleasant, 194 W. Va.301, 460 S.E.2d 436 (1995), we held that "the West Virginia Constitution confers a fundamentalright to run for public office, which the State cannot restrict unless the restriction is necessary toaccomplish a legitimate and compelling governmental interest."

D. Additional Qualification Before proceeding to analyze whether there is a legitimate and compelling state interest that

would justify prohibiting Justice McGraw's candidacy, we must digress to consider JusticeMcGraw's contention that what Relator seeks is to impose an additional qualification for the officeof supreme court justice. The quintessence of Justice McGraw's defense to the relief sought byRelator is that any ruling which prohibits his candidacy amounts to the imposition of aconstitutionally-prohibited qualification for this Court. Justice McGraw argues that Relatorerroneously seeks to use his incumbency as a justice serving an unexpired term as a roadblock tocandidacy.

We do not take issue with Justice McGraw's assertion that this Court cannot imposequalifications for the office of supreme court justice in addition to those enumerated in article VIII,section 7. . . . It is axiomatic that the qualifications necessary to seek office as a supreme courtjustice are those which are prescribed by the constitution. See W.Va. Const. art. VIII, § 7. Whileunderstandable in terms of advocacy, Justice McGraw's attempt to "dress" his incumbency inqualification clothing does not withstand scrutiny. What Relator seeks is not the insertion of anadditional qualification for office, but instead a limitation on when a sitting supreme court justiceis eligible to seek reelection to this body. Far from being a distinction of semantical significanceonly, the foundation for imposing a restriction on eligibility for seeking judicial office is wellentrenched in this state's jurisprudence.

In State ex rel. Haught v. Donnahoe, 174 W. Va. 27, 321 S.E.2d 677 (1984), this Court waspresented with the issue of a judicial candidate's eligibility for circuit court through a petition

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seeking a writ of mandamus. At issue was an interpretation of the language of article VIII, section7, which requires that to be elected to circuit court judge, an individual must "have been admittedto practice law for at least five years prior to his election." W.Va. Const. art. VIII, § 7. The specificissue presented was whether the five-year law practice requirement entailed that such practice hadto have been performed within the confines of this state. The judicial candidate whose candidacywas being challenged had practiced law only in the State of California. 174 W. Va. at 29-30, 321S.E.2d at 679-80. After first determining that an ambiguity was presented by the language at issue,this Court proceeded to analyze the reasons for requiring judicial candidates to have practiced beforethe respective bar of the state in which they sought office. "Recogniz[ing] that the regulation of thepractice of law and the judiciary is traditionally and inherently intraterritorial," we concluded thatthere were valid reasons for requiring that the constitutionally-imposed period of law practice hadto have been performed in this state. 174 W. Va. at 32-34, 321 S.E.2d at 682-84.

After interpreting the law-practice requirement as encompassing a non-existent, but necessaryelement of in-state practice, the Court proceeded to consider whether its interpretation couldwithstand equal protection analysis. Recognizing that this court-created restriction upon eligibilitycould only satisfy the constitutional protections inherent to the fundamental right to become acandidate for public office if it served a compelling state interest, we reasoned:

As previously noted, similar experi[]ential requirements for judges are common. The purposefor such requirements is unquestionably clear. They are intended to insure not only that judgesare competent in the law, but that they are reasonably familiar with the law of the jurisdictionto which they are elected. While it may be axiomatic that judges are elected to interpret anduphold the law, due process demands a high level of jurisdictional competence and integrity inthat endeavor. Requirements or restrictions affecting eligibility for judicial office that reasonablystrive to meet such valid public purposes do not impose impermissible barriers to such offices.Furthermore, a state's particular interest in maintaining the integrity of its judicial system cansupport restrictions which could not survive constitutional scrutiny if applied to other types ofoffices. [Clements v. Fashing.]

Therefore, we hold that the requirement contained in West Virginia Constitution art. VIII, §7, that candidates for the office of circuit judge must have been admitted to the practice of lawin the State for five years prior to their election advances the State's compelling interest insecuring and maintaining a judiciary well qualified in the law of the jurisdiction.

174 W. Va. at 34, 321 S.E.2d at 684. . . .Just as this the Court has the inherent power to regulate the practice of law so too does it have

the inherent power to regulate the judiciary. See W.Va. Const. art. VIII, § 8 (setting forth "inherentrule-making power" of supreme court of appeals). In examining whether a judicial employee wassubject to the "resign-to-run" requirement of article VIII, section 7 of our state constitution, thisCourt began its analysis in Philyaw v. Gatson, 195 W. Va. 474, 466 S.E.2d 133 (1995), with anexamination of the constitutional framework of article VIII.

West Virginia Constitution article VIII is devoted entirely to the powers and function of thejudicial branch of government. Since the powers and functions, and indeed the entire structure,of the judicial branch are unique and unlike any other department of government, the rulesregulating those powers and functions must, of necessity, be adapted to recognize thosedifferences. The very soul of the judicial branch of government is that on a systemic basis, thejudiciary must maintain both actual and perceived impartiality:

It is the design of the law to maintain the purity and impartiality of the courts, and to insurefor their decisions the respect and confidence of the community.... After securing wisdom andimpartiality in their judgments, it is of great importance that the courts should be free fromreproach or the suspicion of unfairness.

Gatson, 195 W. Va. at 477, 466 S.E.2d at 136 (emphasis supplied). . . .As an aid to resolving the issue of whether judicial employees are subject to the constraints of

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the "resign-to-run" provision of article VIII, section 7 in Gatson, this Court examined how the dutiesof judicial employees are necessarily intertwined with the judicial objectives of assuring"independence, impartiality, and public confidence in the court system." [Id.] Discussing theinevitable encroachment on "the integrity of the judicial system" that would result from permittingjudicial employees to continue in office while seeking non-judicial office, we identified as"legitimate public objectives": "ensuring the impartiality of court employees, protecting the integrityand appearance of impartiality of court offices, and preserving the division of powers set out in WestVirginia Constitution article V, section 1." [Id.]

Continuing with the issue of whether prohibition of an incumbent justice's attempt to seekelection mid-term amounts to the imposition of an additional qualification, we find useful thediscussion in Gatson concerning whether the "resign-to-run" requirement amounted to anunconstitutional qualification for candidates seeking office. We explained in Gatson why Marra, adecision in which this Court found that a municipal charter provision had wrongly imposed anadditional qualification of one year of residency in contravention of the constitutionally-providedqualifications for non-judicial office, was not determinative of the issue before the Court:

We believe that the circuit court's reliance on Marra is misplaced since the resign-to-run ruledoes not impose an additional qualification on a candidate. The employer did not alter thequalifications necessary to run for office, but rather established requirements for retainingemployment. The claimant's employment was conditioned upon a reasonable restriction, whichbecause of the unique nature of the employment would not be imposed on employees in theprivate sector. This extension of the resign-to-run requirement to judicial employees is designedas a prophylactic measure to protect the entire judicial branch. This rule is a legitimate andindependent condition of claimant's continued employment with the Judiciary. We hold therestriction on judicial employees requiring their resignation upon becoming a candidate for anon-judicial office is reasonable.

195 W. Va. at 478-79, 466 S.E.2d at 137-38 (emphasis in original omitted and emphasis supplied). Like the circuit court in Gatson, Justice McGraw has wrongly relied on Marra as controlling of

the outcome of this case. Contrary to the position advanced by Justice McGraw, no additionalqualification for office will be imposed by restricting when a sitting supreme court justice, whoseterm has not expired, may seek a new term on this Court. The fundamental qualifications requiredto seek a seat on this Court are not affected by prohibiting Justice McGraw from seeking a secondseat on this judicial body at this juncture in his currently unfulfilled term. What this Court is beingforced to do, solely in response to the unprecedented candidacy undertaken by Justice McGraw, isto impose a restriction which affects eligibility for election to this body, not the qualifications forholding a seat on this tribunal. . . .

Counsel for Justice McGraw suggests repeatedly in his brief that if this Court rules in any fashionwhich defeats his candidacy, such ruling can be motivated only by political, non-legal bias of themembers of this Court. Such assertions, besides being inaccurate, are both insulting and grosslyunprofessional.

E. Compelling State Interest Against both state and federal precedent, we examine whether this state has a compelling interest

which permits it to grant the relief requested by Relator based on Justice McGraw's status as acurrent officeholder of this Court. Both Relator and this Court have identified multiple bases forconcluding that the state has a compelling interest in prohibiting an incumbent justice whose termhas not expired from seeking election to another term on this body. In addition to maintaining theintegrity of the judiciary, the state also has a valid interest in assuring the public an independent andimpartial judiciary, minimizing the involvement of the judiciary in the political process, upholdingthe constitutionally-delegated method of selecting supreme court justices, and ensuring that thejudiciary can sustain the critical and unique element of collegiality necessary to the decision-makingprocess of this Court. Collectively, these legitimate state interests combined with the judiciary's

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inherent power to regulate itself, compel the conclusion that no person who is serving a term as ajustice of the Supreme Court of Appeals of this state shall be eligible to file as a candidate to seeknomination or election to another term on said Court which begins prior to the expiration of the termthen being served.

Addressing these legitimate state interests individually, we first consider the primary interest atstake here--upholding the integrity of the judiciary. It is beyond dispute, based on thepronouncements in Clements, that regulations or restrictions affecting candidacy in the form ofballot access can withstand constitutional scrutiny when those ballot limitations are established forthe purpose of maintaining the integrity of the judiciary. 457 U.S. at 460. This Court previouslyadopted the rationale employed in Clements when we interpreted the constitutional requirementconcerning the qualifications necessary for eligibility to seek judicial office as a circuit court judgein Donnahoe. See 174 W. Va. at 33-34, 321 S.E.2d at 684. It is equally beyond dispute that theaction of Justice McGraw in seeking to "switch seats" mid-term has impugned the character of thisjudicial body. Similarly above discussion is the importance of preserving the integrity of the judicialsystem. See W.Va. Code of Judicial Conduct, Canon 1. As one wise jurist has expounded, "The needto preserve judicial integrity is more than just a matter of judges satisfying themselves that theenvironment in which they work is sufficiently free of interference to enable them to administer thelaw honorably and efficiently. Litigants and our citizenry in general must also be satisfied." Hobsonv. Hansen, 265 F. Supp. 902, 931 (D. D.C. 1967) (Wright, J., dissenting). When an individual seeksso obviously to advance his personal interests through such an unorthodox and previously unchartedmethod of term-enhancement, it cannot be gainsaid that public sentiment would quickly concludethat this action is not deserving of a justice sitting on this court of last resort.

The state's interests in assuring the independence and impartiality of the judiciary andminimizing the involvement of the judiciary in the political process go hand in hand. It is axiomaticthat a judiciary can properly function only when it acts independent of all extraneous influences orinterests, whether political or otherwise. Critical to understanding the imperative that the judiciarybe separated from politics, other than as may be required for the purpose of elections, is anappreciation of the dangers presented by commingling politics with the judiciary. The Hurowitzcourt instinctively recognized the inimical effects that unnecessary exposure to the political processwould have on the judiciary. See 426 N.E.2d at 748. Judges have to guard against the publicperception that involvement in the political process subjects them to the influences of those whohelp secure their elections. Here, as in other instances of judicial conduct, it is not only the accuracyof an allegation of impropriety that warrants concern, but, significantly, it is even the mereappearance of impropriety that has the capability of signaling disastrous results for the judiciary asan institution. As recognized by the Supreme Court of Washington in Niemi, "public confidence isundermined when the 'citizenry concludes, even erroneously, that cases [are] decided on the basisof favoritism or prejudice rather than according to law and fact.'" 820 P.2d at 44 (quoting J. Shamanet al., Judicial Conduct and Ethics § 10.03 at 275). Consequently, the judicial system must be evervigilant with regard to the public's perception of the improper infusion of politics within its courts.

Perhaps the most obvious and compelling reason why Justice McGraw's candidacy should notbe permitted arises from the effects that a mid-term candidacy has on the court system as a whole.As fully-explored by the New York courts in both Hurowitz and Potter, the electoral method ofjudge selection is abrogated by requiring, perhaps ad infinitum, that judges be placed on a court viathe appointment process when contrived judicial vacancies occur. See [Hurowitz]. The evils thatcould be attempted through such "forced" judicial vacancies are easily perceived. Notwithstandingthe patent circumvention of the electoral process, the disruption to the operations of this Court wouldbe catastrophic were we to permit Justice McGraw, and consequently every present and futuresitting justice desirous of following suit, to jump into the election fray, irrespective of when the term

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being filled by that individual expires.26

Finally, we would be less than forthright if we did not acknowledge the effects this candidacyhas had on the ability of this Court to conduct its constitutionally-required duties with the elementof collegiality necessary to properly effect judicial decision-making. While the process of judicialdecisions implies disagreement, it also implies that the parties to such decisions must approachdispassionately the business of dispute resolution without personal animosity and with a healthyrespect for honest differences of opinion. Unfortunately, this candidacy has brought with it anunhealthy pall of partisanship. The author of this opinion has experienced first-hand that the loss ofcollegiality can only serve to promote disharmony and impede rational discourse.

We do not conclude that Justice McGraw is ineligible to be a candidate based on lack ofqualifications. See W.Va. Const. art. VIII, § 7. Instead, his ineligibility arises from the State'scompelling and permissible interest in regulating the political activities of its judicial officeholders.. . . Given our explicit and implicit regulatory powers over the judiciary, we are required to resolvethis unprecedented, and clearly unanticipated by either the constitutional framers or our legislature,issue of an incumbent justice's authority to seek another seat on the same judicial body whilecurrently serving an unexpired term. Because of the constitutional and statutory void, and becauseof the pressing need to resolve this issue, this Court was forced to formulate a rule that addressesthe propriety of an action which never had been attempted during the history of this state. . . .

We come to the end of this case with a profound respect for our constitutionally-proscribedresponsibilities and an equally healthy regard for our historical, institutionally-mandated obligationsto protect the structural integrity of this Court and to apply the terms of our constitution in a mannerwhich comports with common sense and which promotes the public weal.

Based on the foregoing, the writ of prohibition is granted as moulded and the Clerk of the Courtis hereby directed to issue forthwith the mandate for this case. Writ granted as moulded.

Starcher, J., dissenting:

The majority opinion unconstitutionally steals from the voters of West Virginia the right todecide whether or not they, the voters, would elect a qualified, eligible candidate -- Justice WarrenMcGraw -- to a 12-year seat on our Supreme Court of Appeals.1 . . .

II. The Rhetoric of Rudeness To quote from the majority opinion: "The author of this opinion has experienced first-hand that

the loss of collegiality can only serve to promote disharmony and impede rational discourse." . . .Then the majority opinion proceeds to use language conducive to anything but collegial discourse.See, e.g., [supra] that credits the press with "commentary . . . [leading to a] state of calumny that hasbeset this institution [the West Virginia Supreme Court of Appeals] ..."

"Calumny" is defined in the Oxford English Dictionary as "slander."

26Were this Court to sanction Justice McGraw's candidacy, we would be setting in place a mechanism that would allowjudicial seats to be continually up for grabs by those already sitting on this body, whether for the sole purpose of term-enhancement or as a means of defeating the reelection of a particular justice. Whatever the objective, no one canseriously doubt the folly inherent to the establishment of such a "revolving-door" method of justice selection. Wherewould it end? We fear that the end result would be the utter and complete demise of the public's confidence in its judicialsystem.

1As I file this dissent, there are eerie parallels between the majority's creation of a rule in the instant case that deprivesthe voters of West Virginia of their right to vote for a candidate -- and the decision by a 5-to-4 majority of the UnitedStates Supreme Court to create a rule that prohibits the hand count of machine-rejected ballots in the Florida Presidentialelection, a procedure that is clearly authorized by state law and is as established and as American as apple pie! In thecase of Vice President Gore -- and in the case of Justice McGraw -- judges should not be making up rules that denycitizens their right to vote!

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But it is a case of the pot calling the kettle black for the majority opinion to characterize others'language as "slanderous."

For example, the majority opinion describes my dissenting language in this Court's original orderby which we agreed to hear the merits of this case as "contorted logic," "shallow," and"jurisprudentially indefensible[.]" And the majority opinion calls Justice McGraw's attorney"insulting and grossly unprofessional[.]" The majority opinion further describes Justice McGraw as"audacious" and "impugning the character" of this Court[.]

I could go on, but these examples suffice. It was a mistake to include such ephemeral, ill-considered gibes in a formal opinion of this Court. Such an unfortunate choice of words certainlydoes nothing to encourage collegiality on the Court. (Dissents, being more personal than Courtopinions, historically have greater latitude, but even in dissents, harsh, ad hominem, language doesnot age well.)

III. The Majority Opinion is Legally Erroneous The majority says that it is "imposing a restriction which affects [Justice McGraw's] eligibility

for election to this body, not [his] qualifications for holding a seat on this tribunal." . . . In otherwords, the majority says that imposing a restriction that "affects" certain people -- by saying theyare not "eligible" to be elected to a seat on this Court -- is not the same thing as holding that thosesame people are not "qualified" to hold a seat on this Court.

For any sensible person, this is an utterly non-existent distinction. After wading through a field of irrelevant cases that are apparently cited and discussed to provide

cover for the majority's lack of authority for its holding, the majority opinion ultimately hangs itsjurisprudential hat on our recent case of Philyaw v. Gatson, 195 W. Va. 474, 466 S.E.2d 133 (1995).In Philyaw, we upheld a (properly promulgated) Supreme Court rule that said that a magistrate courtemployee -- not a judicial officer -- had to resign their employment with the court system, if theyran for a non-judicial office. We said that this rule was not an imposition of an additionalqualification on a candidate for office, but was a "reasonable requirement[] for retainingemployment [in the] . . . judicial branch." We specifically grounded the reasonableness of thisregulatory restriction on judicial employees upon the analogous express constitutional provisionforbidding judicial officers from running for non-judicial office.

Contrasting Philyaw with the instant case: the majority is not reviewing an employmentrestriction -- it is creating one, out of whole cloth.

Prior to this case, no West Virginia judicial officer or employee has ever been barred fromrunning for any judicial office -- because, of course, their right to do so is specifically reserved inour Constitution. The majority has by its own acknowledgment created a "restriction" that has nogrounding in any written provision of any rule, statute, or constitutional phrase. The restriction thatthe majority is creating is not -- as it was in Philyaw for the judicial employee -- part of any powerthat is given to this Court to set the "conditions" for Justice McGraw's "employment" in his currentseat on this Court. Justice McGraw's "employment" conditions are entirely set by the Constitutionand other applicable express law. Justice McGraw could be removed from office for a breach ofthose conditions -- not by any vote of the majority of this Court -- but only by impeachment. Philyaw, then, the sole case that the majority uses to support its distinction-without-a-differencereasoning, is totally inapposite to the case of Justice McGraw.

IV. The Majority [Violates Justice McGraw's and the Voters’ Rights]

The West Virginia Constitution, Art. 8, § 7, "General Provisions Relating to Justices, Judges andMagistrates," states in pertinent part, with emphasis added:

No justice, judge or magistrate shall hold any other office, or accept any appointment or publictrust, under this or any other government; nor shall he become a candidate for any elective publicoffice or nomination thereto, except a judicial office; and the violation of any of these provisionsshall vacate his judicial office.

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This language is easy to understand. It is clear that if Justice McGraw chose to run for Governor,or State Senator, or County Commissioner or for any other non-judicial office, he would have to firstresign from the judiciary (or be automatically removed by filing for the office). However, it isequally clear that if Justice McGraw chose to run for Magistrate, Circuit Judge, or a Supreme Courtseat -- all "judicial offices" -- he is not required to resign from his currently-held judicial office.

How in the world can anyone say that -- on reading this clear language -- Justice McGraw shouldbelieve that he was barred from running for an open seat on this Court, when that open seat is a"judicial office?"

But the majority (in essence) says -- ". . . it just doesn't seem right." Well, a little over 100 years ago, a great Justice [then a Judge] on this Court warned of the

dangers of letting people tamper with the Constitution when they thought something "didn't seemright." Not long after the Constitution of this state was adopted, Justice Brannon warned thatpermitting additional qualifications for office to be imposed -- by any process other thanconstitutional amendment -- would make the fundamental right to hold public office "subject to thefluctuation of sentiment, the caprices of constantly changing legislatures, the passions of the hour[.]". . . State ex rel. Thompson v. McAllister, 38 W. Va. 485, 507-08, 18 S.E. 770, 777-78 (1893)(dissenting opinion of Justice Brannon, adopted by this Court in Marra v. Zink, 163 W. Va. 400, 256S.E.2d 581 (1979)).

In the case before the Thompson court, an additional qualification for office had been created byat least a colorably legitimate way -- legislative enactment. In Justice McGraw's case, an additionalqualification for office has been created by a majority of this Court, which has asserted the right toadd a qualification that is found nowhere in our Constitution -- in accordance with the majority'sviews of public policy.

In both cases, the result is the same: a fundamental constitutional right of West Virginians hasbeen made "indefinite, unsafe, precarious, dependent upon the times and motives and aimsdominating them." [Thompson.]

West Virginia law is clear that every citizen has the right to run for public office. That right canbe tempered only by explicitly stated requirements:

The right of a citizen to hold office is the general rule, and ineligibility to hold office is theexception, hence courts will hesitate to take action resulting in deprivation of the privilege tohold office, except under explicit constitutional or statutory requirements.

State ex rel. Thomas v. Wysong, 125 W. Va. 369, 24 S.E.2d 463, 468 (1943) (citation omitted)[.]...The majority admits that there is no clear or explicit constitutional or statutory prohibition to

Justice McGraw's candidacy for election to a 12-year seat. The law mandates that Justice McGrawis presumed to be eligible for office unless the Constitution clearly and explicitly prohibits hiscandidacy. It is not Justice McGraw's burden to point to some explicit provision allowing him torun for office, because his eligibility is presumed; rather, the law is clear that his right to run can betaken from him only by some clear and explicit constitutional restriction -- not by a judicially-imposed restriction. The Court's ruling in this case thus turns longstanding precedent on its head.

This Court's articulation of a new public policy in this case is extraordinary, especially in lightof the obvious fact that the Court's previous holdings -- recognizing that our State Constitution hasat its core a fundamental right to run for office -- confirm that the public policy of West Virginia isthe fundamental right to run for office itself.

Creating, from whole cloth, a vague new "public policy" that defeats the clear expression of thisfundamental constitutional right, is antithetical to all known forms of constitutional interpretation.It is wrong for the Court to search outside the Constitution, to create a new public policy to defeatJustice McGraw's fundamental constitutional right. The heart of constitutional construction is notto search for ways to defeat a fundamental constitutional right, but to ensure that such rights arepreserved. . . .

[W]hen the State passes a law that infringes on a fundamental constitutional right, such as the

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right to stand for election, such a law only withstands strict constitutional scrutiny if it is narrowlytailored to meet a compelling state interest. Never before has this Court used a "compelling stateinterest" analysis, not to review, but to create from whole cloth, a constitutional abridgement.

In the instant case, the State has taken no action to deprive anyone of a fundamentalconstitutional right. To the contrary, Secretary of State Hechler has sought to protect JusticeMcGraw's fundamental constitutional right to stand for election.

There was an attempt in the House of Delegates this year to legislate the very restriction onJustice McGraw's fundamental constitutional right that was sought by the petitioner in this case. Hadthat measure been enacted, the question of whether the measure was designed to meet a compellingstate interest may have presented itself to this Court, because such a law would have abridgedJustice McGraw's clear constitutional right to run for office. But the measure failed.

. . . The Constitution clearly and plainly allows a "justice" to run for "a judicial office." WestVirginia Constitution, Art. VIII, § 7. There is no exception to this provision; there is simply nothingthat can be interpreted to limit a justice's right to run for "a judicial office." Another term on theSupreme Court of Appeals is, obviously, "a judicial office." Nothing about the relevant portion ofArt. VIII, § 7 is unclear, yet the majority has grafted onto it an exception for justices who alreadyare in office. The majority's action in this case is not an "interpretation" of Art. VIII, § 7, but anexpansion of it.

The Court could not possibly be interpreting the phrase "a judicial office" because that phraseis clear, and includes the office of Justice of the Supreme Court of Appeals. If it did not, circuitjudges like Justice Maynard and myself, who ran for a term on the Supreme Court of Appeals whilestill sitting as circuit judges, would have been barred from running at that time. Rather thaninterpreting the provision, the majority is expanding it. Such an expansion is foreign to allprecedential rules of constitutional construction.

The Court's decision also completely ignores longstanding precedent from West Virginia andaround the nation that requires every reasonable construction in favor of eligibility for office. InState ex rel. Maloney v. McCartney, 159 W. Va. 513, 223 S.E.2d 607 (1976), this Court stated that:"in the event of ambiguity a constitutional amendment will receive every reasonable constructionin favor of eligibility for office."

. . . Significantly, the petitioner has never suggested that a construction of Art. VIII, § 7, thatallows a sitting justice to run for re-election before the expiration of his present term, isunreasonable. Indeed, considering the fact that the right to run for office is a fundamentalconstitutional right and the fact that any ambiguity must be construed in favor of eligibility, sucha construction is, at the very least, a reasonable one. It would be a departure from reason and logicand require extraordinary contortions of accepted definitions to find otherwise. The law mandatesthat this Court ask the question: If the provision is ambiguous, is there any reasonable constructionthat would allow a sitting justice to run for a separate term on the court? The Constitutionspecifically allows, without exception, a "justice" to run for "a judicial office." Justice McGraw isa "justice," and the two seats open during the 2000 election are both "a judicial office."

VI. [Hurowitz] does notProvide a Basis for this Court's Decision

The decision of the New York Court of Appeals in Hurowitz v. Board of Elections, 53 N.Y.2d531, 426 N.E.2d 746, 443 N.Y.S.2d 54, (1981), a 3-page, 4-3 decision, construing the constitutionof New York, is the only direct authority cited by this Court for its ruling. However, Hurowitz doesnot lend any controlling legitimacy for the majority's reading of the West Virginia Constitution.

Most importantly, in New York State, contrary to West Virginia law, the right to hold publicoffice is not considered to be a "fundamental right," and it may be restricted simply upon a showingthat the restriction has some "rational basis. "In the Matter of Simon Rosenstock v. Scaringe, 388N.Y.S.2d 876, 357 N.E.2d 347, 40 N.Y.2d 563 (1976). In West Virginia, by contrast, citizens havea fundamental constitutional right to hold public office, unless some clear and explicit constitutional

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provision disqualifies them. E.g., State ex rel. Thomas v. Wysong, 125 W. Va. 369, 24 S.E.2d 463,468 (1943). Thus, even if the constitutions of the two states were identical -- and they are not -- onlyWest Virginia requires that there be a clear and explicit constitutional provision in order to rendera candidate ineligible for the ballot, and the New York case is easily distinguishable on that basisalone.

The New York court did not purport to find that the constitutional clause providing that a judgemay not "be eligible to be a candidate for any public office other than judicial office" clearly andexplicitly barred sitting judges whose terms have not yet expired from becoming candidates foridentical positions on the same court; and under New York law, unlike West Virginia law, no suchclear and explicit provision was required to restrict the rights of the petitioner in Hurowitz Indeed,the slim majority in Hurowitz based its ruling upon the entirety of New York's extremely complexconstitutional provisions regarding eligibility and terms of judicial offices. . . .

[T]he New York Constitution's eligibility provisions are dissimilar to those of the West VirginiaConstitution. Simply stated, because West Virginia law and constitution require application of verydifferent legal standards than New York law, [Hurowitz] does not support this Court's rewriting ofthe [unambiguous] provision of the West Virginia Constitution, which permits a judge to run for "ajudicial office," without any restriction or qualification. . . .

VII. The Business of Judging It is ironic that the majority panel -- entirely composed of pragmatic politician/judges who have

substantial personal experience and understanding of the politics of judging -- have chosen to affixtheir support to the majority opinion's erroneous rhetoric about courts being "pure" and "above thefray" of the world of politics.

This rhetoric is, of course, poppycock. As one noted scholar put it:

Whether judges are mere oracles of fixed and known legal principles is a question which mostsocial scientists thought resolved more than fifty years ago by the realist revolution. The battleneed not be fought again here. In the modern view, well established among political scientists,sociologists, and eminent legal thinkers, judges not only make conscious policy choices in theadjudication of cases and in the exercise of the power of judicial review, but also engage inpolitical decision-making as a matter of function. "The judges are [political] actors charged withspecial responsibilities, and their decisions . . . allocate values in society such as opportunity,liberty, money, protection, or representation in other types of decision-making. Like otherpolitical decision-making, this allocation of values is differential; that is, some individuals andgroups are favored and others are disadvantaged. These policy outputs are called 'justice.'"

At the appellate court level, judges are likely to confront policy choices directly in the courseof developing common law principles and in interpreting state constitutional and statutoryprovisions. Even in the process of reviewing lower court decisions for procedural irregularitiesor substantive errors, however, appellate court decisions may serve to favor some kinds ofinterests while disadvantaging others, demonstrating thereby the political nature of the judicialfunction.

This view of the judicial process does not posit that judges are merely "politicians in robes"or that judicial policy-making is exactly like that engaged in by legislatures and executives; theseover-simplifications do not withstand even casual analysis. Nor does it deny that relatively fewcases are explicitly partisan or ideological in nature or that many times judges are called uponto make relatively minor and technical adjustments in long-settled principles of law. But it doesemphasize that judicial discretion is extensive and that judges are aware of the options availableto them and the differential effects alternative choices will have upon individuals and groupsaffected by the litigation before them. Finally, of course, this conception of the political natureof judicial decision-making recognizes that judges frequently are able to develop common law,to interpret statutes and administrative regulations, and to adjudicate constitutional disputes--all

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opportunities which allow judges explicitly to make, veto, legitimize, or reinforce public policies. Phillip L. DuBois, From Ballot to Bench, pp. 23-24, University of Texas 1978.

Or as journalist Tom Miller more vernacularly opined in the April 3, 2000 edition of TheCharleston Gazette:

There was some talk -- but not much -- instigated by the governor during the 2000 legislativesession about the possibility of electing our Supreme Court justices in a nonpartisan election.Events in recent days prove how transparent that unlikely change would be.

Just as there is nothing more partisan than the nonpartisan county board of education in thestate's 55 counties, there would be nothing more partisan in state government than a nonpartisanSupreme Court.

These five people get to make the final decisions on the tough political issues that the twoother branches of government can often duck. Next on the table is the constitutional correctnessof the $ 4 billion pension fund bond issue. Maybe the governor and Legislature should ask thesefolks to solve the Public Employees Insurance Agency funding problem.

Last week, the court decided that gubernatorial candidate Denise Giardina can't have her cakeand eat it too. By a 3-2 vote, the court refused to review a lower court ruling that as a memberof an independent party, she can't get people who are registered with one of the two majorpolitical parties to sign her nominating petitions unless she warns them that this will prohibitthem from voting in their own party's primary election in May.

The week before, the court told one of its own, Justice Warren McGraw, he can't run for a 12-year term on the court while he's serving a shorter term. And before that it was the controversialrejection of Gov. Cecil Underwood's appointment of House Speaker Bob Kiss, D-Raleigh, to filla seat on the court.

These are partisan, political hot potatoes that demand partisan, political decisions. Probablyno one among us can agree completely with all three rulings, but who can complain that theydodged the question?

What did the Legislature do about third-party candidates? Last year lawmakers did removethe penalty for signing one of these nominating petitions and then voting in the Democratic orrepublican primary, but didn't change the section that says it still prohibits this double dippingby voters. Lawmakers also doubled the number of signatures required for third-partynominations for good measure.

And why did a Republican governor appoint a Democrat to the court? For the likely reasonthat he wanted to curry favor with Democratic voters he needs so desperately in November towin another term, with the hope that it would be rejected so he could then name a Republicanto appease his own grumbling GOP ranks.

The partisan labels in the Supreme Court right now may more correctly be business and laborthan Democrat and Republican, but partisanship is alive and flourishing. And changing theelection labels won't alter those dynamics. Both academics and journalists agree that a necessary part of the business of judging is deciding

difficult political issues. The art of good judging, as I see it (and I think most honest judges wouldagree), is doing so in a way that properly respects the structure of our democratic, constitutionalsystem.

It is utterly absurd to suggest that judges just "apply the law," and do not make decisions that areinfluenced by their philosophies -- or their "prejudices" -- the unfortunate term that the majoritychooses to use.

For example, my former colleague, Justice Margaret Workman, is (and was while she sat on thisCourt) strongly "prejudiced" toward helpless children. And whenever she could, she made judicialchoices that favored those children. Some people thought that Justice Workman sometimes"stretched the law" to favor children -- and they were probably right. But she never, in my opinion,stretched it beyond the permissible bounds imposed by our constitutional, democratic system.

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The majority in this case, I suggest, are certainly bringing their "prejudices," or philosophies, tothe issues before them. There is nothing wrong with that.

But they are also improperly "stretching the law" well beyond the limits of our Constitution. VIII. A Final Note

In conclusion, let me step back for a moment from the specific legal reasons why the majorityopinion is wrong.

I personally understand why many people would oppose allowing a sitting justice – any sittingjustice – to run for a full term before his unexpired term is finished. If the Legislature prohibitedsuch conduct, I might even vote as a judge to uphold such a law. And if I were writing ourConstitution, I might support inserting such a clause.

But our Legislature, the elected representatives of our people, declined the opportunity to enactsuch a law – just this year! And I am not writing a new Constitution, but applying the one we have.

Under our Constitution, there is only one group of people who have the legal power to say -- ifthey want to – that what Justice McGraw intended to do was a bad idea. That group is not the ad hocgroup of judges in the majority, who have conjured up a phantom restriction out of their ownfeelings about what seems "right" to them. Let me reiterate: The only group of people who have thelegal right to say that what Justice McGraw sought to do would be a bad idea are the voters of WestVirginia.

The majority opinion unconstitutionally steals the right to choose from the voters of this State.. . . I therefore dissent.

CAREY V. DOSTERT,185 W.Va. 247, 406 S.E.2d 678 (1991).

O'HANLON, Acting Justice1:

This matter is before the Court to answer the certified questions posed by the Circuit Court ofMorgan County. . . .

On or about December 1, 1981, the petitioner, Judge Pierre Dostert, then Judge of theTwenty-third Judicial Circuit, received a written communication from Syvilla Hovermale, a clientof respondent, William B. Carey, a licensed practicing attorney in Morgan County, complainingabout the proposed settlement of a wrongful death case prosecuted by the respondent on behalf ofMrs. Hovermale.

Mrs. Hovermale set forth the nature of her contingency contract with Carey and charged that hehad refused to consummate the settlement. On December 7, 1981, petitioner issued an order to showcause against the respondent directing him to appear before the court. The petitioner's order referredto his concern with the respondent's fifty percent contingency fee contract with Mrs. Hovermale. On December 9, 1981, Frank Brill, a newspaper reporter, was visiting the office of Judge Dostertand was supplied with a copy of the order by either the petitioner, his secretary, or his clerk. Anarticle written solely from the contents of the order to show cause was published December 10,1981, in The Evening Journal, a newspaper of general circulation published in Martinsburg. Theorder to show cause was filed with the clerk of the court on December 10, 1981. On the same date,the petitioner issued a second order in which he recused himself from hearing the matter.

The respondent obtained a writ of prohibition against the petitioner in this Court, wherein weheld that W.Va.Code § 30-2-7 (1931), the statute under which the judge had acted, had been

1With four of the Justices having deemed themselves disqualified, Acting Chief Justice Margaret L.Workman designated Circuit Judges Robert Burnside, Thomas Keadle, Daniel P. O'Hanlon andBooker Stephens as Acting Justices.

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superseded by W.Va.Code § 51-1-4a, the Bylaws of the West Virginia State Bar, and the JudicialReorganization Amendment to the West Virginia Constitution, Article VIII, and was consequentlyinvalid. Syl. Pt. 2, Carey v. Dostert, 170 W.Va. 334, 294 S.E.2d 137 (1982) (hereinafter referredto as Carey I ).

On December 1, 1982, the respondent filed a civil action against the petitioner in the CircuitCourt of Morgan County, seeking damages for libel, slander, malicious prosecution, abuse ofprocess, negligence, intentional infliction of emotional distress, and violation of civil rights under42 U.S.C.A. § 1983 (West 1981). The essence of the respondent's action was that his professionalreputation had been damaged as a result of the petitioner's order to show cause and the resultingnews article.

. . . The first three certified questions call upon us to determine whether the petitioner enjoyedjudicial immunity if he 1) knew, 2) should have known, or 3) subsequently learned that the statutewas obsolete. The petitioner argues that immunity exists and is applicable in all these situations,since all acts taken by the petitioner were judicial acts made within his actual or apparentjurisdiction. The respondent, however, argues that the petitioner judge was not performing a judicialact to which immunity would attach.

It is critical to the independence of the judiciary that judicial officers be free to exercise theirauthority without fear of personal liability for their actions. Historically, courts have recognized thisas the doctrine of judicial immunity, and it is "as old as the law" as recognized by the United StatesSupreme Court in Randall v. Brigham, 74 U.S. (7 Wall.) 523, 536, 19 L.Ed. 285 (1868). Becauseit is a judge's duty to decide all cases within his jurisdiction, and because his decisions may arouseintense feelings, particularly in hotly-contested cases, fearless and independent judicialdecision-making should not be intimidated by potential litigation from dissatisfied litigants. SeePierson v. Ray, 386 U.S. 547, 554 (1967).

The doctrine of judicial immunity as enunciated by the United States Supreme Court is sweepingin its scope. In Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 L.Ed. 646 (1871) the United StatesSupreme Court recognized that judicial immunity applied to preclude liability however erroneousor injurious the judge's action may have been, or indeed whatever the judge's motive in taking suchaction may have been, so long as it was a judicial act. Id. at 347. Moreover, this Court in Pritchardv. Crouser, 175 W.Va. 310, 332 S.E.2d 611 (1985) concurred with the three major policy groundsidentified by the United States Supreme Court for shielding judges from liability, which included: "(1) the preservation of judicial independence; (2) the need for finality in lawsuits; and, (3) theexistence of another remedy against judicial excess in the form of appellate review." 175 W.Va. at314, 332 S.E.2d at 615.

In Stump v. Sparkman, 435 U.S. 349 (1978), the United States Supreme Court reiterated thisdoctrine despite circumstances indicating a rather aggravated lack of due process. In that case, thecircuit judge approved a petition filed by the mother of a " 'somewhat retarded' " girl to have the girlsterilized. . . . The approval of the petition came the same day it was filed after an ex parteproceeding without a hearing and without notice to either the girl or her guardian ad litem. . . . TheCourt in Stump went so far as to hold that a judge would not be deprived of immunity even if theaction were malicious or beyond his authority. . . . The Court made it clear that the judge would onlybe subjected to liability "when he has acted in the 'clear absence of all jurisdiction.'"

. . . Courts have reasoned that it is necessary to imbue the doctrine of judicial immunity with suchbroad scope in order to preserve the integrity of the judicial system. As the Court stated in Stump,disagreement with the action taken by the judge does not justify a deprivation of immunity. . . . Evenif this doctrine may in some circumstances create unfairness to litigants, it is necessary in order toensure that judges render decisions without fear of personal consequences. . . .

This Court has also recognized broad judicial immunity against civil liability. See Crouser, 175W.Va. at 310, 332 S.E.2d 611. In Crouser, this Court . . . stated "[a] judge without immunity is ajudge without power." . . . We also emphasized that immunity is required to prevent the chilling

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effect that even the threat of litigation would have on judges in the performance of their duties. . .. Finally, this Court in Crouser refused to grant attorney's fees against a judge although the UnitedStates Supreme Court had allowed similar fees in Pulliam v. Allen, 466 U.S. 522 (1984). . . .Consequently, this Court's finding in Crouser that "[j]udicial immunity in West Virginia is absolute"indicates that we have given a broader interpretation to judicial immunity then found in many otherjurisdictions. . . .

In short, judges are absolutely immune from civil liability for damages for actions taken in theexercise of their judicial duties. Furthermore, a judge may act within his jurisdiction even when heacts outside his authority. [Crouser.] "[T]he factors determining whether an act by a judge is a'judicial' one relate to the nature of the act itself, i.e., whether it is a function normally performedby a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in hisjudicial capacity." [Stump.]

In this case, the Hovermale complaint was directed to Judge Dostert in his judicial capacity. Theissuance of the show cause order in connection therewith clearly was also done in the judge's judicialcapacity. The fact that respondent thereafter sought and was granted a writ of prohibition againstthe judge further substantiates that the issuance of the show cause order was judicial in nature, sinceonly judicial acts can be prohibited by a writ of prohibition. See Carey, 170 W.Va. 334, 294 S.E.2d137; see also State ex rel. Collier v. County Court of Mingo County, 97 W.Va. 615, 618, 125 S.E.576, 577 (1924); 15 Michie's Jurisprudence, Prohibition, s 2 (1979 & Supp.1990). Therefore, inthis case, there is no question that all the acts taken were judicial in nature.

Furthermore, the scope of a circuit judge's jurisdiction is broad-based. In West Virginia, a circuitcourt is one of general jurisdiction. W.Va. Const. art. VIII, s 6; W.Va.Code s 51-2-2 (1978). Inaddition, the petitioner's December 7, 1981, order was premised upon statutory authority. Althoughthis Court held in Carey I that it had the inherent power to regulate licenses to practice law, therehad been no clear ruling at the time of the defendant's show cause order that W.Va.Code § 30-2-7was not a viable and enforceable statute. See Syl. Pt. 1, 170 W.Va. 334, 294 S.E.2d 137.Furthermore, the statute itself can be distinguished from the common law power of courts of generaljurisdiction to disbar errant attorneys. State v. Shumate, 48 W.Va. 359, 361, 37 S.E. 618 (1900). Although the conflict between that statute and Article VIII of the West Virginia Constitution,W.Va.Code § 51-1-4a, and the Bylaws of the West Virginia State Bar was resolved by this Courtin Carey I, the fact that W.Va.Code § 30-2-7 was subsequently found to be obsolete in no wayindicates that the defendant acted in a "clear absence of jurisdiction."

The fact that a judge acts upon a void or invalid law does not deprive him of immunity if heotherwise has jurisdiction. ... Finally, the respondent makes much of the fact that Judge Dostert is covered by a general policyof insurance purchased by the State of West Virginia to cover all its employees, contending that theexistence of such coverage along with the language of the policy constitutes a waiver of the rightto assert judicial immunity as a defense in this action.

While we do not reach the issue of the effect of this type of policy on the general doctrine ofsovereign immunity, we do here specifically hold that it has no effect whatsoever on the doctrineof judicial immunity in this jurisdiction. It would not be consonant with a doctrine which is meantto foster judicial independence to allow judges to be sued, but merely spared from any personalliability above the limits of an insurance policy.

Therefore, we hold that judges in this jurisdiction are absolutely immune from suit for the resultsof any judicial act performed by them while acting in their official capacity.11

11While this grant of judicial immunity is both absolute and broad, the avenues provided by the Codeof Judicial Ethics and, indeed, the electoral process remain for dealing with judicial misconduct inoffice. It is clear, therefore, that while a judge cannot be held civilly liable in this jurisdiction for

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[The fourth] certified question presents the issue of whether a judge who provides a copy of acourt order to a newspaper reporter prior to the filing of such court order with the clerk of the courtwaives the protection of judicial immunity. The petitioner submits that the publication ordissemination of a court order does not abrogate judicial immunity since the execution of a courtorder constituted a judicial act with immunity attaching to any matters connected with the contentsof the order. Any subsequent publication of the order, petitioner argues, is privileged and fallswithin the confines of judicial immunity. The respondent, on the other hand, argues that thepetitioner's publication of the order was an administrative, rather than judicial act, and deprived himof an initial period of confidentiality during which a totally unmeritorious ethical accusation couldbe investigated and dismissed. Thus, respondent asserts the petitioner disseminated privilegedmaterial in a nonprivileged manner, thereby losing any judicial immunity defense.

Since the signing of the show cause order was a judicial act, causing judicial immunity to attachto the contents of the order, the subsequent publication of the order was privileged and an absolutedefense to a libel or defamation charge. The United States Supreme Court in Forrester v. White, 484U.S. 219 (1988), examined this issue in a different context and enunciated a functional approach tothe analysis of when immunity of judicial officials must be utilized. . . .

In Forrester, the issue was whether a state court judge was entitled to absolute immunity fromsuit for damages brought pursuant to 42 U.S.C. § 1983. . . . The case was brought by a probationofficer who claimed she had been demoted and ultimately dismissed by the judge on the basis of sexdiscrimination. . . .

The Court questioned whether the actions performed by the judge were in fact judicial acts whichwould have entitled him to absolute immunity. . . . Particularly the Forrester Court reflected that

[d]ifficulties have arisen primarily in attempting to draw the line between truly judicial acts, forwhich immunity is appropriate, and acts that simply happen to have been done by judges. Here,as in other contexts, immunity is justified and defined by the functions it protects and serves, notby the person to whom it attaches.

[The] Supreme Court expanded further on the application of this functional approach to theimmunity issue by stating that

[u]nder th[is] approach, we examine the nature of the functions with which a particular officialor class of officials has been lawfully entrusted, and we seek to evaluate the effect that exposureto particular forms of liability would likely have on the appropriate exercise of those functions. Officials who seek exemption from personal liability have the burden of showing that such anexemption is justified by overriding considerations of public policy, and the Court hasrecognized a category of 'qualified' immunity that avoids unnecessarily extending the scope ofthe traditional concept of absolute immunity.[Based] upon the application of this functional approach, the Forrester court concluded that the

judge was not entitled to absolute immunity for his decision to demote and discharge the probationofficer because the function performed by the judge was clearly administrative rather than judicialin nature. . . .

We agree that such a functional approach is useful in determining whether a particular act isjudicial in nature. . . . [T]he defendant's show cause order, even though not yet filed with the clerkof the court at the time a copy was obtained by the newspaper reporter, still was the manifestationof a judicial act. . . . Since issuance of a show cause order is a judicial act, the petitioner cannot besued for libel or defamation because of the publication of the contents of the order. . . . Finally, thefact that the alleged defamatory statements were made outside of a courtroom is in no waydispositive in determining whether or not they are cloaked with immunity. . . .

Thus this Court holds that a judge acting in his judicial capacity who provides the public with

judicial acts done in his official capacity, other remedies exist.

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information contained in the public record, whether through the press or otherwise, or distributescopies of pleadings or other official court documents which are a part of the public record does notthereby give up the protection of judicial immunity. In short, there is no cause of action against ajudge for the publication of an order that is part of a public record and is the manifestation of ajudicial act. We therefore answer this question in the negative. . . .

G. Continuation of the Common Law

Read Article VIII, § 13.

MORNINGSTAR v. THE BLACK AND DECKER MANUFACTURING COMPANY,162 W. Va. 857, 253 S.E.2d 666 (1979).

MILLER, Justice.

This case presents the question of the extent to which a manufacturer of a defective product isliable in tort in this State to a person injured by such product.

The question comes to us from the United States District Court for the Southern District of WestVirginia under the Uniform Certification of Questions of Law Act. The plaintiffs, the Morningstars,filed a personal injury action in the District court based on diversity of citizenship against thedefendant, Black and Decker Manufacturing Company. The basis for their action is the allegationthat Black and Decker manufactured an "8-Inch Builders Sawcat" and Mr. Morningstar was injuredwhen the saw's safety guard failed to close. Mrs. Morningstar sued for loss of consortium.

The Morningstars' complaint set out multiple theories for the defendant's liability, all based ontort concepts. . . .

Black and Decker initially raises [a procedural issue that] we must dispose before addressing thesubstantive law. It contends that[,] . . . as a result of W.Va. Code, 2-1-1, and the provision found inArticle VIII, Section 13 of the West Virginia Constitution, we are not empowered to alter thecommon law as it existed in 1863. . . .

IITHE EFFECT OF ARTICLE VIII, SECTION 13, AND CODE 2-1-1 ON THIS COURT'S

ABILITY TO MODIFY THE COMMON LAW Black and Decker urges that Article VIII, Section 13 of our Constitution and W.Va. Code, 2-1-1,5

operate as a bar to this Court's ability to change the common law. These two provisions have led tosome confusion in the opinions of this Court and have brought into existence two conflictingresponses.

The first is a line of cases which suggest that this Court cannot alter the common law and thatsuch alterations must come from the Legislature. See, e.g., Seagraves v. Legg, 147 W. Va. 331, 127S.E.2d 605 (1962) (absence of wife's right to sue for loss of consortium resulting from personalinjury to husband); Walker v. Robertson, 141 W. Va. 563, 91 S.E.2d 468 (1956) (bar to womenserving on petit jury); State v. Arbogast, 133 W. Va. 672, 57 S.E.2d 715 (1950) (rule that dogscannot be subject of larceny); Shifflette v. Lilly, 130 W. Va. 297, 43 S.E.2d 289 (1947) (strictliability of innkeeper to guest for personal injury or property damage); Poling v. Poling, 116 W. Va.

5. . . W. Va. Code, 2-1-1, states: "The common law of England, so far as it is not repugnant to the principles of the Constitution

of this State, shall continue in force within the same, except in those respects wherein it was alteredby the general assembly of Virginia before the twentieth day of June, eighteen hundered andsixty-three, or has been, or shall be, altered by the legislature of this State."

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187, 179 S.E. 604 (1935) (interspousal tort immunity), overruled, Coffindaffer v. Coffindaffer, W. Va. , 244 S.E.2d 338 (1978); Cunningham v. Dorsey, 3 W. Va. 293 (1869) (applying Englishcommon law rule that easement of "ancient lights" can arise only by adverse enjoyment from timeimmemorial).

A subcategory within this category consists of those cases where the Court has acknowledgedthat it is required to apply the common law as it existed in 1863, but has been able to find a commonlaw precedent that enables the Court to follow more modern common law principles. See, e.g., Longv. City of Weirton, W. Va. , 214 S.E.2d 832 (1975) (abolishing doctrine of municipal tortimmunity).

A second and rather divergent approach has been taken in cases where the Court has said acommon law rule may be overruled or modified where the old rule does not meet existingconditions. In many of these cases the Court mentions neither the statutory nor the constitutionalprovision. See, e.g., Currence v. Ralphsnyder, 108 W. Va. 194, 151 S.E. 700 (1929) (restrictingdoctrine of champerty); Powell v. Sims, 5 W.Va. 1, 13 Am. Rep. 629 (1871) (disapproving doctrineof ancient lights); see also Board of Education v. W. Harley Miller, Inc., W. Va. , 221 S.E.2d882, 888 (1975) (Neely, J., concurring) (disapproving doctrine that arbitration agreement is no barto suit on underlying contract); State ex. rel. Worley v. Lavender, 147 W. Va. 803, 131 S.E.2d 752,761 (1963) (Calhoun, J., dissenting) (disapproving rule that husband and wife may not testify to"nonaccess" in bastardy proceeding).

Included within this category are cases in which the Court has adopted new common lawprinciples without ever discussing whether those princples arose out of pre-1863 common law. See,e.g., Teller v. McCoy, W. Va. , 253 S.E.2d 114 (1978) (affording residential tenant impliedwarranty of habitability); Harless v. First National Bank, W. Va. , 246 S.E.2d 270 (1978)(limiting private employer's right to discharge an at-will employee); Lee v. Comer, W. Va. , 224S.E.2d 721 (1976) (establishing right of unemancipated minor to maintain action against parents forpersonal injuries received in automobile accident); State v. Grimm, 156 W. Va. 615, 195 S.E.2d 637(1973) (abolishing the M'Naghten common law rule on insanity and adopting a rule similar to theModel Penal Code); Adkins v. St. Francis Hospital, 149 W. Va. 705, 143 S.E.2d 154 (1965)(abolishing doctrine of charitable immunity in tort cases against hospitals); Weaver Mercantile Co.v. Thurmond, 68 W. Va. 530, 70 S.E. 126, 33 L.R.A. (N.S.) 1061 (1911) (adopting Rylands v.Fletcher Doctrine, which did not come into the English common law until 1868); Snyder v.Wheeling Electrical Co., 43 W.Va. 661, 28 S.E. 733, 64 Am. St. Rep. 922, 39 L.R.A. 499 (1897)(adopting Res Ipsa Loquitur Doctrine, which Byrne v. Boadle, 2 H. & C. 722, 159 Eng. Rep. 299(1863), created on [Nov. 25, 1863], some five months after our Constitution was adopted on June20, 1863).

While there has been a lack of consistency on the part of this Court in its treatment of [§ 2-1-1and Art. VIII, § 13], there apparently has been no attempt made to determine the origin of and thehistorical reasons for these two provisions. In fact, in Seagraves v. Legg, 147 W. Va. 331, 336, 127S.E.2d 605, 607 (1962), we find this statement in reference to these two provisions: "Apparently[other] states do not have the same constitutional and statutory provisions as West Virginia. . . ."

Our constitutional and statutory provisions are not unique, but are similar to many stateconstitutional provisions statutes and early colonial and territorial charters. It can be shown from thedecisions of other courts that these provisions were designed to establish the initial body of law onwhich the particular state would operate, and were not viewed as provisions designed to limit thecourts in their historic role of developing the common law.

At an early date in Baring v. Reeder, 11 Va. (1 Hen. & M.) 154, 161-63 (1806), the SupremeCourt of Virginia met this issue under a 1776 ordinance which provided that the common law ofEngland and acts of Parliament prior to the fourth year of King James the First "shall be the rule ofdecision, and shall be considered as in full force, until the same shall be altered by the legislativepower of this colony." The court stated the effect of this ordinance on the common law as interpreted

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by the Virginia courts: "I would receive them [modern English decisions] merely as affording evidence of the

opinions of eminent Judges as to the doctrines in question, who have at least as greatopportunities to form correct opinions as we have, and are influenced by no motives but such asare common to ourselves: and with respect to ancient decisions in England, what Judge wouldwish to go further? Who will contend that they are binding authorities upon us, in all cases whatsoever? Shall we not have the privilege every day exercised in England, of detecting theerrors of former times?” ...In Trustees, etc., of Town of Brookhaven v. Smith, 188 N.Y. 74, 77-80, 80 N.E. 665, 666-67

(1907), the court had before it a constitutional provision referring to the common law of 1777 -- theyear in which New York adopted its first constitution. It declined to treat this provision aspreventing the judicial alteration of the common law:

"The adoption by the people of this state of such parts of the common law, as were in forceon the 20th day of April, 1777, does not compel us to incorporate into our system ofjurisprudence principles, which are inapplicable to our circumstances and which are inconsistentwith our notions of what a just consideration of those circumstances demands." . . .[Justice Miller discussed and quoted with approval appellate decisions from Nebraska, Colorado,

Ohio, Pennsylvania, Maryland, Kentucky, and Wisconsin construing provisions similar to § 13 andreaching results similar to those of Virginia and New York.]

Justice Schaefer of the Illinois Supreme Court dispatched this same issue in Amann v. Faidy, 415Ill, 422, 114 N.E.2d 412 (1953). There, an Illinois statute had set the common law as of the fourthyear of James I, and stated that it "shall be the rule of decision, and shall be considered as of fullforce until repealed by legislative authority":

"What the statute adopted was not just those precedents which happened to have already beenannounced by English courts at the close of the sixteenth century, but rather a system of lawwhose outstanding characteristic is its adaptability and capacity for growth. The common lawwhich the statute adopted 'is a system of elementary rules and of general judicial declarations ofprinciples, which are continually expanding with the progress of society, adapting themselvesto the gradual changes of trade, commerce, arts, inventions and the exigencies and usages of thecountry.'. . .”10 . . . Perhaps there is no more eloquent and forceful expression of this principle than that found in

Ketelsen v. Stilz, 184 Ind. 702, 111 N.E. 423, L.R.A. 1918D, 303 (1916), which construed anIndiana statute that adopted the common law made "prior to the reign of James the first. . . ." Aftera lengthy discussion of common law jurisprudence as a system of judge-made law, the courtconcluded:

"We can not believe, then, that our legislature intended to petrify the rules of the common lawas declared by judicial decisions at any one time or period, and to set them up in such unflexibleform as to make them absolute rules of decision throughout all time. . . . Under the section of the

10Justice Schaefer also observed that if the statute had forged the common law for the Illinois courtas of 1607, then many fields of the law would never have been developed: "The complaint in this case would certainly fail to state a cause of action because negligence did notemerge as a separate basis of tort liability until two hundred years after 1607. . . . The developmentof the law of contracts would lie before us, for Slade's case . . . was not decided until 1602. The lawof quasi-contracts began with Moses v. Macferlan, 97 Eng. Repr. 676, decided in 1760. The validityof a future interest in real property was first made to depend upon the period within which it wouldvest in the Duke of Norfolk's case, . . . decided in 1682, and the present period of the rule againstperpetuities became settled in Codell v. Palmer, . . . decided in 1833. We would have no law ofagency, for it, too, developed after 1607. . . . The list could be expanded." . . .

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statute relied on where there are no governing enactments of the legislature, the courts of thisState are in all matters coming before them, to endeavor to administer justice according to thepromptings of reason and common sense, which are the cardinal principles of the common law,and they are not to accept blindly the decisions of the English courts of any particular time orperiod without inquiring as to the reasons upon which they rest. To do so would be to adopt apractice which would be in direct violation of the theory of that common law which the statuteprescribes we are to follow. . . ." . . . The obvious thread running through all of these cases is that the term "common law"

encompasses two components: first, a body or collection of case precedents extending from thepresent time back into the ancient courts of England; second, and of more importance, a system ofreasoning from case to case precedent that permits the common law to grow with and adapt tochanging conditions of society. . . .

In this statement from The Path of the Law, 10 Harv. L. Rev. 457, 469 (1897), Justice Holmes,in his characteristically pragmatic fashion, summarized the reason why the English common lawcannot be rigidly imposed as binding precedent:

"It is revolting to have no better reason for a rule of law than that so it was laid down in the timeof Henry IV. It is still more revolting if the grounds upon which it was laid down have vanishedlong since, and the rule simply persists from blind imitation of the past."From the foregoing discussion, it can be seen that the provisions of our Constitution, Article VIII,

Section 13, and of our statute, W.Va. Code, 2-1-1, are not unique to this State, but exist in similarform in many other states. The historical purpose of such provisions was to declare what sourceswould initially constitute the organic law which would govern the body politic. We do not find anyjurisdiction which adheres to the view that such provisions were adopted to freeze commonlaw for the courts as of the date the particular provision was enacted.

Certainly, many of these provisions provide, as do ours, that the legislature may alter or amendthe common law, but this has never caused the courts in other jurisdictions to conclude that thesilence about the courts' right to change the common law must mean that courts could not alter it.

Such a construction appears to have been considered by this Court only in some of its cases. Thisconstruction does violence to the very nature of the common law, which, as we have seen, has beenjudicially evolved from prior precedents and modified as necessary to meet society's changingneeds. It would have been a mere redundancy to require the constitutional and statutory provisionsto read "until altered or repealed by the legislature or the courts," since the courts always had thehistoric power to evolve and alter the common law which they created.

Based on the foregoing law, we hold that Article VIII, Section 13 of the West VirginiaConstitution and W.Va. Code, 2-1-1, were not intended to operate as a bar to this Court's evolutionof common law principles, including its historic power to alter or amend the common law. . . .

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